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Post by KoNeko on Oct 28, 2002 7:17:05 GMT -5
The facts and decision in Airedale NHS Trust v Bland In 1989, Anthony Bland, then 17 years old, was crushed in the Hillsborough Football Ground riot. Due to a lack of oxygen, he suffered irreversible brain damage and occupied a permanent vegetative state (PVS). A PVS patient can breathe and react to painful stimuli, but cannot operate apart from these very basic bodily functions. PVS patients have no cognitive process, and cannot move voluntarily or speak. Bland was fed artificially through a nasogastric tube, and his waste was removed through a catheter. Bland remained in this condition for three years, after which a proceeding was initiated by Airedale NHS Trust (as the body responsible for administrating the hospital where Bland resided) to seek a declaration as to the legality of ceasing nutrition and hydration as a means of ending his life. The hospital sought that if Bland died after the withdrawal of food or water, it would have been of natural causes and not give rise to any criminal or civil liability on the part of the doctors. It was the opinion of the medical staff responsible for Bland that he had no prospect of recovery, and removal of the feeding tube would result in the end of the physical functioning of the body within 10-14 days.
In this case, the House of Lords declared that it was permissible for doctors to cease treatment, as it was not in the best interests of Anthony Bland to keep him alive. The court relied on the Bolam[/i] test, and in light of a recent report from the British Medical Organisation, that test was sufficiently satisfied . Anthony Bland would never have recovered, let alone recovered significantly to make his life meaningful, so there was no real purpose to his treatment. It was therefore not in his best interests for him to remain in such a condition. Other factors to take into account in determining a patient's best interests include the intrusiveness of the treatment and the effect on the patient's family . Another test that was considered by the House of Lords was that of substituted judgement. This test involves looking at the PVS patient's wishes and intention while they were still competent and determining what they would have done in the situation. The alleged benefit of using this test was that, in being "sensitive" to the patient's attitude, we will be using as close to the patient's own judgement and his right to self determination will not be violated, even if he himself cannot exercise it . This test has been preferred in the United States, where patients may make "living wills" in relation to what they wish to have done to them in the event that they become incompetent.
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Post by KoNeko on Oct 28, 2002 7:23:03 GMT -5
However, this test was rejected by Lord Mustill in Bland[/i] for its uncertainty- His Lordship declared that it was "meaningless" to make a decision on behalf of a patient who had not even contemplated the question of whether or not they would wish to have their life support turned off . Similarly, in Victoria, the Medical Treatment Act allows competent patients to refuse treatment, but they must only be able to refuse treatment in relation to their current condition . That is, the Medical Treatment Act does not deal with living wills . However, the act allows the patient to appoint an agent in the event of incompetence, so it is arguable that the Medical Treatment Act has preempted the need of patients to exercise some measure of control over choices relating to medical treatment.
The sanctity of life It is possible to withdraw treatment where the sanctity of life is not breached . Courts must therefore determine what the value of a life is for the purpose of the cases. It was determined in the New Zealand case of Re G[/i] that "life" in this sense means a life that is meaningful, not merely physical existence . In Re G[/i], Mr. G suffered severe brain damage as a result of a car accident and was subsequently kept alive with nutrition and hydration with a gastronomy tube. Although he was immobile, his family and caregivers agreed that he was not quite PVS. In deciding whether or not to withdraw treatment from Mr. G, the court referred to Bland's case and agreed that in both cases the treatment for the patients was medically futile and there was no therapeutic benefit to the patients in keeping them alive. Another source of evidence to support the definition of "life" in Re G[/i] is basic western philosophy. In terms of one's life, it is important to determine what oneself is, and the nature of oneself's existence. Descartes stated that "I am a thinking thing ", implying that it is one's cognitive function, not one's physical being, that is essential to one's existence. Locke states that "it is by the consciousness it [Man] has of its present thoughts and actions that it is self to itself now. " That is, one's continuity of consciousness is what makes oneself persist over time. These philosophical arguments are paramount to the moral justifications of ceasing treatment. In the case of Bland[/i] and other PVS patients, given that they have no cognitive thought, there does not seem to be a "thinking being" as required for a life to be meaningful. Therefore, there is no sanctity of life argument to be made, because the patient's life is effectively worthless. However, in less extreme cases than Bland[/i] and Re G[/i], the patient may not be unconscious, but nonetheless have a very low quality of life, and the sanctity of life argument could be made. The paraplegic who is subjected to confinement in a wheelchair and requires constant care may feel that his life is a burden on his caregivers and family and therefore unrewarding and invaluable. Despite his low quality of life, it seems strange that assisting such a patient to suicide would fall under euthanasia. As a result, it appears that the sanctity of life argument only fails in the cases where the patient has lost the capacity to think.
Under the Medical Treatment Act, patients may refuse "extraordinary" treatment. While the definitions of "ordinary" and "extraordinary" are ambiguous , "extraordinary" is generally accepted to mean any treatment other than the provision of nutrition, hydration and palliative care. This is supposedly because the patient can make an assessment of the desirability or appropriateness of the treatment and not because of the worth of his or her continued existence, so rejections of extraordinary treatment do not diminish the value of life . However, there have been instances where the court has ordered that a patient to be subject to extraordinary treatment , but in Australia it is unlikely that the decision would be followed. Even so, this case points out the distinction that may exist between what is, according to the courts, in the patient's best interests, and the value of the patient's life.
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Post by KoNeko on Oct 28, 2002 7:28:02 GMT -5
The patient's best interests Courts put an emphasis on the best interests of the patient because "society has always defined caring for the sick and staving off death as noble pursuits" . The provision of care is how society symbolises and reinforces the value of human life so long as any chance of recovery remains, even if it is of little value to the patient . Strictly following this, if there were any chance of recovering, regardless of how small, it would be in the patient's interest to keep them alive, lest that chance of recovery manifested itself. However, "recover" in this sense does not necessarily equate with returning to an "ordinary" state. The few people who do regain consciousness usually suffer some form of permanent damage, distortion of the limbs or paralysis , thereby significantly reducing their quality of life. Moreover, long-term patients will also suffer heavy economic burdens as a result of ongoing treatment or requiring caregivers and alterations to their homes. However, it is worth noting that in some cases it is not necessary to consider this, as there may be accident or compensation commissions or insurance companies whose financial resources will be called upon. For example, in Re G[/i], Mr. G's injury was caused by an accident, so the Accident Compensation Corporation shouldered the financial burden of his hospital treatment . Finally, the families of the patient will suffer emotionally, from the time the patient occupies the unconscious state to the time that the patient ultimately passes away. Although a family may cling onto the hope that the patient will recover or that the prognosis of permanent unconsciousness is wrong, they must also rely on the knowledge and expertise of the medical staff at hand. The medical staff may also perceive that it is part of their professional duty to provide life-saving efforts, and that a failure to do so would constitute a violation of their duty . However, it is also assumed that the medical professionals would act in the patient's best interests, although it has been established that this term is rather ambiguous. It is usually also distressing for a family to see a patient when they are in such a condition, so it is not only in the best interests of the patient to be relieved of their suffering, but also for the patient's family and perhaps the staff responsible for the patient. Therefore it seems that the argument "in the best interests of the patient" is not necessarily true, as the courts can (and usually will) consider the interests of other parties, such as the patient' family, and the hospital staff caring for the patient.
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Post by KoNeko on Oct 28, 2002 7:33:00 GMT -5
Self-determination of the patient It is also of importance to consider the wishes of the patient. While in Victoria the Medical Treatment Act does not give the wishes of the patient (while still conscious) any legal weight, it is nonetheless a relevant consideration. Medical practitioners may consult the family and friends of the patient in order to determine what the patient, if competent, would have wanted. This can be contrasted with the position in the United States, where a patient may make a valid "living will" outlining what he or she wishes to be done to him or her in the event that he or she becomes incompetent . While the court in Bland[/i] has rejected the substituted judgement test , it is arguable that it may still apply in the event that a patient has expressed certain wishes whilst he or she was still competent. One can draw an analogy with the case of organ transplants and donation. Even if the patient has, while alive and competent, consented and perhaps even registered as an organ donor, if the family of the patient was not aware of the patient's intentions and wishes, on death the hospital responsible will not remove the organs. Conversely, even if the family of the patient knew that he or she had not registered as an organ donor, it is still possible for the hospital to remove any organs if the deceased patient's family feels that organ donation would have been consistent with the patient's wishes . The need to respect self-determination is essential to maintain the patient's dignity, and is also consistent with the social perception that caring for the sick is a noble pursuit, as caring would involve respecting their wishes. However, a question is raised in the light of the patient's self-determination. What if the patient had expressed a wish to be kept on life-sustaining treatment, no matter what? It would be a violation of the patient's right to self-determination where the treatment was withdrawn. Despite its unreasonableness in the face of the lack of resources in hospitals, it appears that the request of the patient, specifically where it is also supported by the patient's family, would have to be honoured by the medical practitioners. A reply to this objection could be that the medical resources to be distributed amongst our society are scarce. Allocation of resources through the community may have to be done according to who will benefit more from the resource. For example, it is clearly more beneficial to give a hip replacement to an otherwise healthy 35-year-old than to give it to a terminally ill person . Similarly, in Bland's case[/i], it would be more beneficial to the wider community if Anthony Bland, after three years without improvement to his condition, had his life-support treatment withdrawn, where it could be distributed elsewhere to patients with a greater chance of recovery.
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Post by KoNeko on Oct 28, 2002 7:39:24 GMT -5
The role of the court In Bland[/i], the House of Lords ultimately made the decision as to whether or not to cease Anthony Bland's life-sustaining treatment. However, is this a decision that the courts should be making? A possible criticism of the large role of courts is that judges are people without any special knowledge of medicine or the nature of the patient's specific condition. This would make the judges no different from the layperson presented with a case involving a PVS patient. Who are they to be determining the value of a human life? Hoffman LJ gives this response in Bland[/i]: "To continue treatment is as much a choice as to discontinue it… One way or another, a choice is being made. " In other words, where there are decisions with serious legal consequences to be made, the courts will make that decision in the absence of any other qualified body to do so. However, surely the are better qualified bodies- the family of the patient for one, and the body of doctors responsible for the patient. It is submitted that the body of doctors should be personally involved with the patient's case, as opposed to the body of experts suggested in Bolam's case. This is because the body of experts, although with the relevant medical knowledge, would not have been attuned to the specific circumstances of the patient, or the patient's family. This is supported by Peart and Gillett, who state that the question of whether or not to cease treatment is one for the family and doctors, not the courts . If that were the case then the notions of substituted judgment and the best interest of the patient and others would apply with more weight. Perhaps the best-suited solution would be for the legislature to enact laws regulating the position of euthanasia and the withdrawal of treatment from PVS and other long-term unconscious patients. Lord Browne-Wilkinson confirmed that it is not for the courts to impose its standards on society , but the moral standards and attitudes towards euthanasia are set by the members of the public. The public elects the legislature, so it is only logical that the laws reflect their values. There is an emphasis that the laws should be rather stringent criteria that must be met before euthanasia can occur (for example, in the Netherlands, fifty criteria have been suggested ), and the courts will be able to regulate the application of the euthanasia laws. However, there are certain areas of law in which invasive and irreversible procedures have required court orders, such as sterilisation of incompetent minors . It is quite arguable that there is nothing more irreversible as euthanasia, so there is support for allowing courts to have a more active role. However, in the case of Re Marion[/i], the courts were also concerned about the invasiveness of the procedure, which is not applicable to the withdrawal of treatment, so a distinction can be drawn on those grounds between sterilisation and the withdrawal of treatment.
Conclusion Whilst it is socially encouraged that doctors and other health professionals endeavour to help the sick, it is not always practicable to do so. Issues like the allocation of resources in the community, the best interests of the patient and his or her family, the value of the patient's life are all relevant in considering whether or not to terminate or withdraw life-sustaining devices. While the court in Bland[/i] played a vital role in the decision, it is arguable that courts should play a more diminished role in regulating the effects of legislating for euthanasia. However, this remains an issue for the legislature, and until there are sufficient legislative safeguards, the issue of switching off is one that should remain the hands of the patient's family and medical practitioners- that is, the people who would know the patient best.
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Post by KoNeko on Jun 4, 2003 11:35:04 GMT -5
I'm such an academic freak. Here's my most recent essay- it's for my Forensics class. A bit of background info- section 318 of the Crimes Act relates to a section about culpable driving causing death- there is a great overlap with manslaughter as well as drink-driving and drug offences. I personally think that it's a useless provision (because you could just as well charge under manslaughter or murder) and this is my proposal for changing the current law.
Sidenote- I can't get the freaking footnotes to work, so I'm sorry but you'll have to bear with when I make outlandish premises.
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Post by KoNeko on Jun 4, 2003 11:36:32 GMT -5
Using cars in homicide: A discussion of the effectiveness of section 318 of the Crimes Act
Introduction In April 1997 the Attorney-General, Jan Wade, introduced reforms to the Sentencing Act which would provide that the offence of culpable driving causing death now carries a maximum imprisonment term of 20 years , as opposed to the seven years that it previously did. This is still the applicable law today . The changes were initiated to reflect “the high value that the community places upon human life and safety” , as well as to relieve the growing dissatisfaction within the community of the sentencing levels in offences where death results . At the same time, the Sentencing and other Acts (Amendment) Act also increased the penalty for manslaughter from 15 to 20 years imprisonment .
Given that culpable driving falls under the common law category of involuntary manslaughter, it seems odd that it is reiterated in the Crimes Act 1958 as a separate section, independent of other types of manslaughter. The reason for this is based on an assumption that juries are more reluctant to convict an offender- particularly one who has otherwise had no prior offences or driving accidents- on a charge of manslaughter . However, this is no longer the view as police have continually and with increasing force clamped down on dangerous driving activities such as speeding, drink-driving and not wearing seatbelts. Therefore, contrary to the premise that culpable driving causing death is a slightly “paler” shade of manslaughter, it appears that both communities and the courts are now more prepared to approach it in the same way as other homicide offences. If this is the case, then there is a clear overlap between section 318 and the common law manslaughter provisions, both in function and sentencing. This raises issues about the necessity for such a provision.
The following essay seeks to examine the reasons behind the introduction of section 318, and consider whether those reasons are still valid. The discussion will then turn to specific applications of the section- in particular, “road rage” and drink-driving incidents. Leniency in sentencing in these cases will also be considered before finally looking at the possible future for the provision, including adding provisions for the use of mobile telephones and the introduction of a new offence of dangerous driving causing injury.
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Post by KoNeko on Jun 4, 2003 11:37:40 GMT -5
Background[/u] Driving is an unnatural act that requires quick decision-making at high speeds. This means that it is imperative that driving be regulated, as it is inherently dangerous. As the number of vehicles on the roads increased, so the legislation changed to reflect the changing views of the community. However, while there are over 370 fatalities on the road each year in Victoria , the number of people who are prosecuted in relation to these accidents is relatively low. This tolerance of vehicle collisions has been present for over 150 years- where horses and carriages were involved in fatal collisions, juries tended to find a verdict of “death by misfortune” and acquit the accused of their homicide charges . Even in 1947 New South Wales Police Commissioner McKay observed that “the Crimes Act which provides for the penalty (manslaughter) for this offence was enacted before motor traffic was envisaged…it is noteworthy that offenders, even when convicted on these felony charges, are frequently sentenced to a relatively light term of imprisonment. ”
It has only been recently- in the last 20 years or so- that judges and juries have become stricter in their response to culpable driving offences. Section 318 was introduced into the Crimes Act in response to experience that juries were reluctant to convict drivers of manslaughter in fatal crashes, even where the case appeared to be clear . It was hoped that in placing a specific provision in the Crimes Act regarding driving, juries would be more willing to convict more offenders then they had previously done so under the more “serious” offences of murder and manslaughter.
Culpable driving and manslaughter[/u] There is a view that driving offences should be treated differently from other forms of homicide- particularly those that fall within the category of involuntary manslaughter- because cars are more widespread than (for example) guns. However, a response to this argument is that while cars are common, it does not mean that road fatalities need to be. The Victorian Law Reform Commission argues that the relevant consideration is whether death occurred, and the level of culpability of the actor. The fact that cars are widespread is irrelevant in considering whether or not road fatalities should be distinct from other forms of homicide . [/color]
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Post by KoNeko on Jun 4, 2003 11:44:32 GMT -5
Even so, because driving is a common activity, juries may be more reluctant to convict than in a shooting, for example. They may be able to relate to the accused’s position or have even have been in a similar situation. The assertion that cars are widespread also supports the counterargument that drivers should be more careful as the number of cars increases, the risk of accident between them also increases. Another reason for the court’s leniency is that the exclusion provisions in section 318(4) and (5) mean that an accused cannot subsequently be prosecuted for other homicide offence. As a result, not only would prosecutors intentionally opt for a lower charge out of concern that juries might not convict on a more serious offence , but the association of “really bad conduct with much less bad” would inevitably devalue the offence of manslaughter .
As community attitudes change and courts become stricter on penalties in driving cases, the distinction between culpable driving and manslaughter blurs. The “negligence head” of section 318 already has very similar requirements to that of negligent manslaughter. The relevant test for fault in negligent manslaughter is from Nydam[/i]:
“…[an act that] involves a great falling short of the standard of care required of a reasonable man… and a high degree of risk or likelihood of the occurrence of death or serious bodily harm… as to warrant punishment under the criminal law .”
Section 318(2)(b) also has the objective “reasonable person” condition and the “great falling short of the standard of care” would arguably be unjustified. Moreover, in Callaghan[/i] the word “culpable” was even used to describe acts that amounted to negligent manslaughter . Therefore it appears that while they are worded slightly differently, section 318(2)(b) and negligent manslaughter operate in virtually identical ways. A side note that should be raised at this point is that there is widespread criticism in the use of the negligence requirement in criminal proceedings, regardless of form. One reason is that juries are often left to determine the degree of culpability of the accused . However, this will not be discussed further as it does not have any additional relevance to the issue at hand.[/color]
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Post by KoNeko on Jun 4, 2003 11:47:18 GMT -5
In recent years the discernible shift towards intergrating culpable driving as a branch of homicide has resulted in some substantial discussion in the court’s reflection of community standards. In R v O’Connor[/i] it was stated:
“if there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is “a tragedy for all concerned”… then the time has come for such views to be dispelled… the offence is a species of involuntary manslaughter and it must be treated as such. ”
While it is preferred to charge drivers under section 318, it is, in where the court finds appropriate, still possible for a person to be prosecuted successfully for manslaughter where a car was used . However, it appears that as long as the provision for culpable driving exists alongside manslaughter in its current form, prosecutors will prefer to use culpable driving over manslaughter for the reasons outlined above.
Specific applications of section 318[/u] Section 318(b)(a) refers to the criminal standard of recklessness in the offender’s disregard for a substantial risk of death of another person. This was deemed to be the “worst class” of culpability by Callaway JA in R v McGrath[/i] , when compared to the strict liability requirements in paragraphs (c) and (d) for being under the influence of alcohol and drugs respectively, and the “negligence head” in paragraph (b). The “recklessness head” is often invoked in cases where the driver has had prior driving convictions, or there is a combination of different forms of dangerous driving (such as drink-driving and speeding) . [/color]
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Post by KoNeko on Jun 4, 2003 11:49:26 GMT -5
Drink-driving[/i] In the case of Withers, where a drunk driver hit a pedestrian with so much force that he decapitated her, the court noted that to drive in such a manner was to make a mockery society’s expectations . In R v Brown[/i], Jones J also stated:
“Culpable driving causing death is essentially an offence against public safety… it is an offence that often gives rise to very strong feelings and outrage in the community… there can be little doubt that the road toll is one of the most serious social problems faced by the community… it is a problem for, and impacts upon, the whole community .”
It appears that in cases where alcohol (or drugs) are involved, courts are inclined to be more severe on an offender than in cases where they are not. This is because there is a perception of drink-driving being an antisocial activity. Since the introduction of graphic Transport Accident Commission advertising campaigns in the early 1990’s, the public at large is more aware of the consequences of activities such as drink-driving. This has also been acknowledged by Jones J in Brown[/i]:
“The various initiatives that have been taken to deal with this problem clearly have the objective of getting people to not drive when their facilities are impaired by alcohol” .
It is also noteworthy that the TAC campaigns have been reasonably effective in reducing crashes. The number of serious casualties on the road has plateaued to about 6,200 in the last decade . This is a considerable drop from 10,348 in 1988 .
Many of the cases prosecuted under section 318 involve alcohol or drugs. In fact, drink-driving offences are a major reason for the success of section 318. This is basically because a strict liability approach is taken and there is no need to actually prove any intent on the part of the accused; the fact that he or she was over the legal limit and that a death occurred through their driving is sufficient for a charge to be laid. This is believed to have quite a deterrent effect on drivers and therefore there is public utility in having it remain a strict liability charge. However, the Victorian Law Reform Commission argues that while this may be so, it is also in the public interest for the accused to have a fair trial . Where a fatal driving accident occurs, if the accused is charged with manslaughter, proof showing that his or her drunkenness was a contributing factor to the death of the other person is required. This is clearly a fairer option for the accused, although it would detract from the deterrent value that the strict liability approach has. Alternatively, it may be possible to bring both a manslaughter charge and a drink-driving charge under the Road Safety Act 1986 provisions at the same time, but this is yet to be proven in Victorian courts.[/color]
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Post by KoNeko on Jun 4, 2003 11:51:33 GMT -5
Road Rage[/i] In contrast to drink driving, the community response to “road rage”- driving in such a way as to scare or injure someone, usually as a reaction to some form of provocation- has been less clear. This may be surprising, because in many of these cases where death results, the driver of the vehicle is intending a particular outcome in their victim (that is, death, fright or injury), as opposed to drink-driving matters where the driver usually has not formed any intention at all. It seems that in some of these road rage cases, murder may even be an appropriate outcome, but this is rarely sought. Spencer highlights this query by giving the following example:
“If a man, exasperated by a noisy party, shoots a gun at random into the house and kills, he gets prosecuted for murder; but if he kills by driving straight into a group of cyclists, one of whom has offended him by giving a rude sign, he will almost certainly be prosecuted for manslaughter only. ”
One reason for the difference in opinion between road rage and drink driving is that road rage may be extremely difficult to prove. It relies on the driver’s subjective mind at the time of (or immediately prior to) the collision, which in turn relies heavily on witness accounts. Moreover, there is no test after the fact that can be carried out on the driver to ascertain his or her condition, as there is with determining blood alcohol concentrations. Finally, as with the difficulty of regulating fatigue and driving, people respond to different stimuli. There are no set criteria for what constitutes road rage and therefore it is virtually impossible to legislate, much less run an advertising campaign for.
One notable point is that while road rage and section 318 both relate directly to driving activities, there is nothing in section 318 that governs incidents that do not result in death. Where road rage is fatal, the negligence and recklessness heads of section 318 are clearly appropriate, but where death does not occur from the dangerous driving of an individual who is offended or annoyed by another driver or pedestrian, the only recourse available would be the very general provisions of sections 16 and 17 of the Crimes Act . This is because many instances of road rage only intend to harm or frighten the other person; it is only in extreme cases where death is actually intended or occurs. Perhaps a new section that relates to dangerous driving causing injury should be introduced into the Crimes Act to cover this disparity.
Sentencing[/u] In April this year, the English Court of Appeal began their sentencing guidelines with the following principle:
“A custodial sentenced would normally be imposed for causing death by dangerous driving, no matter what the mitigating circumstances, because of a need to deter other drivers from driving dangerously and because of the gravity of the offence. ”[/color]
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Post by KoNeko on Jun 4, 2003 11:53:28 GMT -5
Similarly, in Australia, custodial sentences are imposed on those who kill others through their driving. This was reiterated in Jurisic[/i], where the appeal against a respondent’s sentence of a home detention was upheld . One of the major purposes of a custodial sentence is to deter both the individual and community at large from repeating the acts in question.
The issue now becomes one about the length of the offender’s sentence. While section 318 carries a maximum penalty of 20 years imprisonment, it is very rare for a driver to receive more than seven or eight years. The highest known sentence in Victoria is 15 years in the case of Brown[/i] . The reason for the general leniency in sentencing is because of the number of mitigating factors that the court takes into account. Many of the drivers express remorse for their actions both in entering early guilty pleas and making apologies to the families and friends of the deceased through statements, and courts give this a substantial amount of weight. However, a cynical criticism of this should be posited. It is all too possible that, given the many years that section 318 has been in force and the experience that courts do consider early guilty pleas, unscrupulous offenders may simply enter pleas of guilty from the beginning to receive a more lenient sentence. Of course, this is yet to be proven and the vast majority of drivers- particularly those who have never had any prior convictions- are indeed remorseful. Therefore the act itself has some deterrent value on the individual in question.
However, in cases where the driver has previously had driving convictions, especially in relation to drink-driving, there is more deterrence on the community than the offender him or herself. Where there is a “persistent disregard of road traffic laws” , imposing a long custodial sentence is usually done to protect the public, even if there is little to no deterrent effect on the individual. In the case of Brown[/i], the accused’s “appalling” driving history included a total of 23 driving offences (including another conviction of culpable driving causing death) over 17 years . Jones J, in sentencing, expressed that while the prospect of rehabilitating the accused is poor, there was a need to protect the community from the driver, as well as generally deter others. It was also noted that the fact that the driver had never held a licence had not prevented him from driving.
In determining the appropriate sentence, the seriousness of the offence should be considered by balancing the aggravating factors (such as prior offences, the existence of drugs or alcohol, speeding and aggressive driving) against the mitigating factors (such as age, remorse and an otherwise good driving record). However, the English Court of Appeal noted that age should only be considered where it goes to the experience of the driver . Even so, age can still be relevant in sentencing because it would go to the prospect of rehabilitation and deterrence of the driver. It would be more desirable to rehabilitate and deter a young person who has many more years of driving ahead of them, than to imprison them for a long sentence if, when released, they have lost all job and social skills. This is particularly so in the case of drink-driving, where 42% of drivers in fatal crashes are between 21 and 29 years of age . In the case of young offenders, it may be appropriate to impose a sentence of 1-5 years, depending on the severity of the facts.[/color]
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Post by KoNeko on Jun 4, 2003 11:58:09 GMT -5
Fixing it up[/u] It is quite possible to govern road law without the use of section 318. In cases where manslaughter or murder is clear, the accused should be prosecuted under that section. In cases where drink-driving or driving under the influence of drugs occurs, the accused should be prosecuted under the relevant provision of the Road Safety Act. Where injury occurs as a result of dangerous driving, the accused should be prosecuted under either section 16, 17 or a new dangerous driving provision if it is introduced.
Alternative methods[/i] However, enforcement is not the only way. Friedland explores the prospect of using non-coercive methods for compliance . For example, it is possible to regulate traffic through civil liability means, education, licensing and insurance. By using these means Friedland believes that safer driving can be achieved, and accidents can be prevented. Another method would be to make cars safer. This seems to already be the trend as while accident frequency has not declined in recent years, the number of fatalities and the severity of the injuries has done so, possibly reflecting safety improvements in cars . Drivers’ education also has been given more emphasis in recent years, with the TAC campaign to increase the number of hours’ experience for a learner driver before they may obtain their licence. Government initiatives to reduce bad driving habits, such as the current Arrive alive! campaign have also imposed harsher penalties for “bad” driving activities in a greater effort to reduce the number of collisions further .
If these methods increase in popularity, the use of non-coercive methods may soon be just as important (if not already so) in preventing traffic offences than criminal sanctions.
Mobile telephones and driving[/i] In December 2002 new road laws came into effect to curb the use of hand-held mobile phones whilst driving . This forms part of the government’s Responsible Driving package, but, while section 318 of the Crimes Act exists, it may be worth inserting a new head under which drivers can be charged where their driving causes death. The new provision would be similar to the strict liability provisions in section 318(2)(c) and (d) and would cover situations where a driver was using a mobile phone in a collision. [/color]
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Post by KoNeko on Jun 4, 2003 12:00:09 GMT -5
While mobile phones currently do not account for many road fatalities, they are responsible for a significant number of non-fatal collisions. In fact, using a mobile phone whilst driving increases the chance of collision fourfold and it is only a question of time before the number of fatalities in this relatively new area increases. In fact, the first case of a driver being charged with culpable driving where a mobile phone was involved occurred early this year . It therefore appears necessary to prevent this behaviour before it becomes more widespread.
If, however, in the future the culpable driving provision is removed from the Crimes Act, it would be possible to prosecute under both a homicide offence and the relevant provision of the Road Safety Act.
Conclusion[/u] Driving is an inherently dangerous activity which many do on a regular basis. In the past, the law has been rather slow in meeting community expectations in their attitudes towards those who take lives on the road, but in recent years it has begun to evolve more quickly. Although section 318 was introduced in response to the assumption that courts were reluctant to convict on charges of manslaughter, given the change in social views, it may soon be time to put it aside and charge offenders under manslaughter at common law, or the Road Safety Act. In addition, a new provision governing responsibility in non-fatal collisions should be included in the Crimes Act. These should suffice to ensure that offenders are sentenced for appropriate periods of time, with regard to the gravity of the offence, any mitigating factors the driver may have, and the public interest in deterrence and safety. Finally, education and vehicle safety should continue to increase to prevent the occurrence of such tragedies in the first place. In reflection to community attitudes, it appears that section 318 may still have some limited application, particularly where alcohol and drugs are involved, but this is being continually phased out and it is believed that over the next decade, culpable driving causing death will be considered as a subclass of manslaughter, and not as a special category of its own.[/color]
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