Advice n why drink driving causing death des nt autmatically result in a manslaughter charge The fllwing infrmatin was prepared by the Ministry f Transprt and the New Zealand Plice during the preparatin f the Regulatry Impact Statement fr raising the penalties fr dangerus driving ffences causing injury and death. One ptin that was examined was whether the Land Transprt Act 1998 shuld be amended t include a general prvisin fr vehicular manslaughter (with a maximum imprisnment f life), instead f having individual ffences f drink driving, drug driving, dangerus/reckless driving, failing t stp after a crash, and illegal street racing ffences causing death. Careless driving causing death wuld have remained as an ffence, but it was prpsed that the maximum term f imprisnment be extended frm 3 mnths t 2 years. Mtr manslaughter Dangerus r reckless driving causing death, r causing death while driving with an excess breath r bld alchl level, are specific ffences under the Land Transprt Act 1998 and have as a maximum penalty imprisnment fr a term nt exceeding 5 years r a fine nt exceeding $20,000, and disqualificatin frm hlding r btaining a driver licence fr 1 year r mre. In an apprpriate case manslaughter under the Crimes Act 1961 may be charged rather than an ffence under the Land Transprt Act 1998. Hwever, this ffence is much mre difficult t establish than a substantive transprt ffence. The Pwell case The Curt f Appeal decisin f R v Pwell [2002] 1 NZLR 666 held that when manslaughter is charged in the case f negligent mtrists, the charge shuld be framed by reference t sectin 156 f the Crimes Act 1961. Sectin 156 is ne f the sectins f the Crimes Act t which sectin 150A f that Act applies. The Curt held that there can be n dubt that sectin 150A was intended t, and des, apply t mtrists. This means that drivers are under the legal duty in sectin 156, when perating a mtr vehicle, t avid danger t human life and are criminally respnsible where missin r neglect f that duty is a majr departure frm the standard f care expected f a reasnable persn in the circumstances. The neglect f duty that is a majr departure frm the standard f care expected f a reasnable persn in the circumstances is cmmnly referred t as "grss negligence". The Curt further stated that negligence t a degree belw that applicable t sectin 156 r ne f the ther sectins in Part VIII f the Crimes Act therefre shuld nt supprt a charge f manslaughter. In thse cases Page 1 f 8
charges under the Land Transprt Act 1998 shuld be pursued, where nly "mere negligence" is required. It is well established in Transprt law that the standard f care that a driver n a rad shuld exercise is the degree f care and attentin that a reasnable and prudent driver wuld exercise in the circumstances. 1 The Skerrett case Befre the Pwell case the guiding case fr deciding whether t charge mtr manslaughter r dangerus r reckless driving was R v Skerrett (Curt f Appeal CA236/86, 9 December 1986) which was abut sentencing in such cases. In that case McMullin J stated "There seems little pint in prsecuting cases f reckless r dangerus driving causing death as cases f manslaughter except where the maximum sentence available fr these ffences is regarded as inadequate in all the circumstances." Cnsequently manslaughter was nly charged when it was cnsidered that the maximum penalty available under the Transprt legislatin was inadequate fr the particular ffending. The decisin in Pwell des nt take this apprach, but leads us t fcus n the questin f whether r nt there has been a majr departure frm the standard f care expected f a reasnable driver in the circumstances. Hwever, as charges fr manslaughter are brught nly in the mst serius cases, in practice the different apprach des nt have any significant implicatins. Skerrett remains the leading appellate judgement in relatin t establishing aggravating and mitigating factrs in sentencing. Many f thse factrs assist us t decide whether there has been a majr departure frm the standard f care expected: Aggravating factrs: cnsumptin f alchl r drugs; racing, cmpetitive driving n the highway, grssly excessive speed, shwing ff; the disregard by the driver f warnings frm his passengers; a persistent and deliberate curse f very bad driving; the incidence f death as a result f the reckless driving; behaviur at the time f the ffence, eg failure t stp r endeavuring, at further risk t the victim, t escape; 1 Simpsn v Peat [1952] 2 QB 24 Page 2 f 8
causing death in the curse f reckless driving carried ut in attempting t avid detentin r apprehensin Mitigating factrs: the driving was a ne ff piece f driving such as a mmentary reckless errr f judgement A cmbinatin f at least three aggravating factrs are generally necessary t take the ffending t a level where the starting pint fr sentencing (that is befre taking int accunt any factrs persnal t the defendant) wuld be mre than 5 years imprisnment, r where the neglect f duty wuld be regarded as "grss negligence". Tw Guiding Principles: 1. A charge f manslaughter shuld always be reserved fr the mst serius cases f bad driving; 2. Scpe must be left fr the applicatin f the serius Land Transprt Act ffences (eg. SS 36, 36A, 39, 61, 62, LTA 1998), r they will becme redundant. The ratinale fr principle 1 is simply that if manslaughter is charged t readily the charge and the ffence f manslaughter wuld becme devalued in the eyes f the public and the Curts. If a charge f manslaughter is laid then everyne shuld immediately be aware that this must be a serius allegatin f exceptinally bad driving t justify that charge. The ratinale fr principle 2 is als reasnable clear, and is nicely summed up by the Curt f Appeal in R v Skerett, CA 236/86 which is referred t abve including the statement in that case by McMullin J. Traffic ffences and penalties fr causing death and injury 2 Prblem definitin Every driver f a mtr vehicle n a rad in New Zealand has a statutry duty nt t perate that vehicle in a dangerus r reckless manner (sectin 7 f the Act) r in a careless r incnsiderate manner (sectin 8 f the Act). Where these statutry duties are breached, sanctins may apply. Where the breach f these duties ccurs and death r injury results, mre severe sanctins can be applied. Dangerus driving ffences and careless driving cvers a wide range f driving behaviur that is unsafe n New Zealand rads and at the serius end f breaches f transprt legislatin. These behaviurs may be ne-ff 2 This infrmatin has been taken frm the Regulatry Impact Statement. Page 3 f 8
mmentary lapses in cncentratin, thrugh t deliberately dangerus r reckless actins that seriusly cmprmise rad safety. In terms f dangerus and careless drivers cntributin t crashes, in 2009 there were 10,106 Plice-reprted casualty crashes where the driver f at least ne vehicle was been identified as at fault. Nt all drivers deemed at fault are held t be legally culpable. Of thse wh were: 1,004 were cnvicted f careless driving causing death r injury; and 291 were cnvicted f driving dangerus r reckless driving (sectins 36, 36A r 61 f the Act) causing injury r death. Over the past few years, public cncern (including sme judicial cmment) has been expressed ver the adequacy and apprpriateness f existing sentences fr careless driving causing death r injury (set ut in sectins 38, 39 and 62 f the Act) and dangerus driving ffences 3 causing injury r death (sectins 36, s36a and 61 f the Act). The current penalty regime fr this suite f driving ffences is utlined in table 8 belw. Table 8: Current penalties fr driving ffences (under the Land Transprt Act 1998) causing death r injury Offence Causing Death Causing Injury Careless driving Aggravated careless driving/ careless driving under the influence f drink r drugs (s62 f the Act) Dangerus/Reckless driving: causing injury r death (sectin 36), illegal street racing causing injury r death (sectin 36A), drink/drug driving causing injury r death (sectin 61), and failing t stp after a crash invlving injury r death (sectin 36) Either: maximum 3 mnths imprisnment, r a fine nt exceeding $4,500; and Licence disqualificatin fr 6 mnths r mre Either: maximum 3 years imprisnment, r a fine nt exceeding $10,000; and Licence disqualificatin fr 1 year r mre Either: maximum 5 years imprisnment, r a fine nt exceeding $20,000; and Licence disqualificatin fr 1 year r mre Either: maximum 3 mnths imprisnment, r a fine nt exceeding $4,500; and Licence disqualificatin fr 6 mnths r mre Either: maximum 3 years imprisnment, r a fine nt exceeding $10,000; and Licence disqualificatin fr 1 year r mre Either: maximum 5 years imprisnment, r a fine nt exceeding $20,000; and Licence disqualificatin fr 1 year r mre 3 This includes dangerus/reckless driving, illegal street racing, drink/drug driving, and failing t stp after a crash when smene is injured r killed. Page 4 f 8
In Safer Jurneys, the gvernment s new rad safety strategy t 2020 it was annunced that there wuld be a review f the penalties fr ffences causing injury r death, t ensure that they better reflect sciety s views f the culpability f drivers wh kill r injure ther rad users, and that they are mre in line with penalties in ther jurisdictins. Cmparable penalties The current level f penalties fr these ffences are nt in line with penalties fr ffences invlving injury r death where the mental element f the ffence is similar t that applying t these driving ffences. Penalties in ther jurisdictins Penalties in ther jurisdictins fr similar ffences vary, but n the whle they are greater than the penalties applicable in New Zealand. It must be nted, hwever, that New Zealand prsecutrs have the ptin f charging drivers with Crimes Act 1961 ffences where death has ccurred (fr example, manslaughter r murder). The fllwing are examples frm ther jurisdictins: United Kingdm maximum 14 years imprisnment fr dangerus driving r drink driving causing death United States varies frm state t state but n average the maximum terms f imprisnment fr traffic ffending causing death are between 15-20 years in prisn r vehicle manslaughter Australia varies frm state t state but usually between 14-20 years imprisnment Canada (Ontari) maximum 14 years imprisnment fr dangerus driving causing death. The current level f penalty impsed in New Zealand is apprximately ne half t a third f the maximum term f imprisnment fr dangerus/reckless driving, illegal street racing r drink/drug driving causing death in verseas jurisdictins. Finding cmparable infrmatin n careless driving causing injury r death is mre difficult, as nt all ther jurisdictins have a similar ffence. One jurisdictin that des is the United Kingdm. In 2006 the United Kingdm increased the penalty fr careless driving causing injury r death frm a maximum 5,000 4 fine and demerit pints, t a maximum term f imprisnment f 5 years. Prpsed new penalties fr ffences causing injury r death 4 This was equivalent t abut NZD$10,450 n 21 June 2010. Page 5 f 8
It is prpsed that the penalties fr driving ffences causing injury and causing death be increased, in line with the apprach adpted with ther criminal ffences. It is als prpsed t simplify the penalty structure applying t careless driving charges invlving injury r death by amalgamating the t three ffences int a single generic term. This wuld allw the Curt greater discretin t take int accunt all aggravating factrs when sentencing an ffender, rather than being restricted t the current criteria under sectin 39. Table 9: New penalties fr driving ffences (under the Land Transprt Act) causing injury r death Offence Causing Death Causing Injury Careless Driving (cmbining ffences currently cvered under sectins 38, 39 and 62 f the Act) Either: maximum 3 years imprisnment, r a fine nt exceeding $10,000; and Licence disqualificatin f 1 year r mre Either: maximum 2 years imprisnment, r a fine nt exceeding $10,000; and Licence disqualificatin f 1 year r mre Cntraventin f sectins 36. 36A r 61 f the Land Transprt Act Either: maximum 10 years imprisnment; r a fine nt exceeding $20,000; and Licence disqualificatin fr 1 year and 1 day r mre Either: maximum 7 years imprisnment; r a fine nt exceeding $20,000; and Licence disqualificatin fr 1 year and 1 day r mre This is a significant increase in the current penalty fr these ffences. Hwever, an increase brings the penalty fr these serius driving ffences in line with the penalty fr ther similar ffending. Currently, Plice have the ptin t charge sme drivers under the Crimes Act 1961 (fr manslaughter r murder), shuld the circumstances warrant it. This ability wuld be retained. Alternative ptins The retentin f the status qu was cnsidered as an alternative in bth sets f ffences. Hwever, it was cncluded that ding s wuld fail t address public cncerns abut the penalty levels, and wuld cntinue the current incnsistency f these penalties with ther crimes f similar weighting and the penalties applicable in verseas jurisdictins fr this type f ffending. Cnsideratin was als given t intrducing a vehicle manslaughter ffence int the Act. This wuld have effectively replaced the current penalty fr dangerus driving r reckless driving causing death with a maximum penalty f life imprisnment, matching the cmparable penalty fr manslaughter under the Crimes Act 1961. This ptin was nt pursued, as it was accepted that setting a penalty f this magnitude wuld require all ther driving penalties t Page 6 f 8
be increased cnsiderably t ensure relativity. In additin, Plice have the ability t lay a charge f manslaughter in driving cases resulting in death where the circumstances f the case warrant it, and this will cntinue t prvide a satisfactry level f deterrent and penalty fr the very serius instances f dangerus driving. Regulatry impact analysis Benefits The majr quantifiable benefit f the prpsed increase in penalties (and simplified ffences) is the reductin in culpable driver-caused crashes invlving death and r injury arising frm the deterrent effect f the penalties. The Ministry f Transprt has estimated that the ptential deterrent effect wuld result in a reductin f these ffenders by between 1 and 5 percent. The estimated annual scial cst savings f these levels f deterrent are shwn in the table belw. Table 10: estimated scial cst savings arising frm prpsed penalty increases estimated percentage reductin in ffenders due t deterrence factr f increased penalties Scial cst savings based n average numbers f ffenders fr past 5 years (millin dllars per year) 1 percent $5.9 millin 3 percent $17.7 millin 5 percent $29.5 millin Csts The Ministry f Justice (Curts) and the Department f Crrectins will bth face additinal cst pressures giving effect t these prpsals. The key csts arising frm the prpsal: 1. There is a need t make prvisin fr between 10 t 156 extra prisn beds 5 (Ministry f Transprt estimate) t cpe with the lengthened prisn sentences ffenders wuld be expected t receive. Assuming that all current prisn capacity is being used, this wuld lead t a ne-ff cst capital cst f between $4 millin and $62.4 millin t prvide these beds. There wuld als be annual n-ging peratinal csts incurred ranging frm clse t $1 millin up t $14.1 millin. 2. Curt csts t deal with additinal defended cases r mitigating pleas are estimated t be up t $415,000 per annum. There wuld 5 A prisn bed is the measure used fr husing ne prisner 365 days per year. Fr example, a prisner wh serves 200 days, fllwed by a prisner serving 165 days wuld equate t ne prisn bed. Page 7 f 8
als be an impact thrugh increased legal aid requests and appeals this is estimated t cst an added $500,000 $600,000 per annum. The Ministry f Transprt has undertaken a Benefit-cst-analysis and assuming a 5 percent reductin in ffenders (and assciated scial csts), that the estimated maximum number f beds will be needed t accmmdate ffenders with lnger sentences, and the abve csts, these prpsals shw a psitive BCR f 1.3 with a NPV f $34,024,000. Risks The majr risk is that there wuld be increased recurse t careless driving charges rather than dangerus driving charges (the current balance is arund 4:1 in favur f careless driving cnvictins). This wuld be expected t fllw decisins by ffenders, whse assessed culpability is n the cusp between careless driving and dangerus driving, t plead guilty t careless driving charges and face lesser penalties, but defend any dangerus driving charge. This will be mitigated by the fact that careless driving will nw attract a higher penalty, and als that prsecuting authrities have the experience f being able t accurately gauge what the apprpriate ffence shuld be. An added risk relates t the capacity f prisns t deal with lnger sentences and ptentially mre ffenders being sentenced t terms f imprisnment. If Curts are unable t apply lnger sentences r use a sentence f imprisnment due t capacity issues then this will lessen the expected deterrence effect f these prpsals. This will be mitigated by the delay that will ccur befre the full number f extra beds is required, and this may allw capacity issues t be addressed. The break-even pint fr these prpsals is a reductin in the number f ffenders (and their assciated scial csts) f 3.8 percent. If the deterrent effect f these prpsals is less than 3.8 percent, and assuming the maximum number f 156 beds is required, then the prpsals wuld nt have a psitive BCR. While the expected reductin is between 1 and 5 percent, it is cnsidered that the mst likely reductin wuld be arund 3 percent. This makes these prpsals psitive BCR very sensitive t minr variatins in the effectiveness f the deterrence factr, and the additinal number f prisn beds resulting frm this prpsal. Page 8 f 8