Explainer: Is a $2,000 fine and community service fair for killing a cyclist?

by Matt de Neef

In late November, 22-year-old driver Billie Rodda was handed a $2,000 fine and 200 hours of community service after hitting and killing pro cyclist Jason Lowndes in December 2017. Rodda pleaded guilty to the charges of dangerous driving causing death and using a mobile phone while driving.

The cycling community’s response to Rodda’s sentence was one of incredulous rage. How could a cyclist’s death be worth so little? Surely Rodda should have been given a custodial sentence?

Less than a week later, Timothy Scollary was sentenced to three years in prison (18 months without parole) after hitting and killing flute maker Michael Grinter in December 2018. Like Rodda, Scollary had pleaded guilty to dangerous driving causing death. But unlike Rodda, Scollary had also pleaded guilty to failing to render assistance, and for failing a blood alcohol test — after hitting Grinter, Scollary didn’t called triple zero or offer assistance to the fallen rider, and he was over Victoria’s legal blood-alcohol limit of 0.05.

So why were such sentences handed down to Scollary and Rodda? What are the factors a judge must consider when deciding on a sentence? Why does one driver who hit and killed a cyclist not get jail time while the other does, even though they pleaded guilty to the same offence? And importantly, as cyclists, how we can make sense of the fact that our lives are seemingly “worth” so little? To answer these questions and more we spoke with Victorian barrister Cameron Baker — a keen cyclist himself.

Note that this article describes the law as it applies in the Australian state of Victoria. Specific details will differ from jurisdiction to jurisdiction.

CyclingTips: First up, for those who don’t know what a barrister does, can you explain your role?

Cameron Baker: Lawyers are split into basically solicitors and barristers. And the technical definition is that solicitors work for law firms and barristers work for themselves. But basically, a barrister is somebody, particularly in criminal law, that specialises in appearing in court.

So if you have a problem, you might go and see a solicitor who’s like your local GP. And then if the GP can sort you out, then they just do it themselves. But if they either can’t do it or don’t have time to do it or don’t have the skills, then they’ll send you off to the specialist. And the barrister’s like the specialist.

My clients tend to come to solicitors and they say “I’ve got a problem” and then the solicitor organises for me to appear in court on behalf of their clients.

Say you have a client that comes to you and they’ve been charged with dangerous driving causing death. What is your job as a defence barrister in that case? What are you trying to do?

My job is to try and get them the best result that I can. And the best result might be having them found not guilty of the charge or the best result might be trying to get them the minimum penalty or sentence that they can for whatever result they have.

There’s a general sentencing principle that if you plead guilty to an offence, you get a lesser penalty than if you plead not guilty and then ultimately are found guilty. So if I had a client … and I thought based on an analysis of the evidence that they were going to be guilty, I would generally try and convince my client to plead guilty to that charge at the earliest opportunity so that they get the greatest discount, and therefore the best result.

Can you run through the three possible charges a driver can face if they cause a road incident that results in someone’s death?

The three charges that somebody could possibly commit when they’ve caused an accident with someone being killed, is careless driving, dangerous driving causing death, or culpable driving causing death.

Firstly, careless driving: the level of criminality there is that you have not driven with all due care and attention. And an example of that might be if you rear-end somebody [or] if you don’t see somebody when you’re pulling out and you have an accident in that manner. The maximum penalty for careless driving is a fine — so you cannot get a jail sentence in relation to a careless driving charge.

Secondly, dangerous driving causing death. The level of criminality there is that your driving was dangerous to the public, having regard to all the circumstances. And the maximum penalty there is 10 years imprisonment. Going off my memory — around about 60% of people that are found guilty of dangerous driving end up serving a term of imprisonment. Which means about 40% of people who either plead guilty or are found guilty of that charge do not end up with terms of imprisonment.

Dangerous driving could be something like driving on the wrong side of the road. I would think it’s more like you’re doing something intentionally that’s wrong as opposed to unintentionally doing something wrong. So you could be speeding, you could be driving on the wrong side of the road, you could be swerving in and out a bit — something of that nature.

And thirdly, culpable driving is the next level where your driving really needs to be so bad that you should have realised that what you are doing is going to probably cause an accident. The maximum penalty is 20 years imprisonment. The level of criminality there is that the driving was reckless, negligent, or the driver was so affected by drugs or alcohol to be incapable of having proper control of a vehicle.

The definition of recklessness is that there was a substantial risk of death or serious injury and the driver made a conscious decision to disregard that risk. Negligent driving means the driver fails unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances.

But then there’s also being so affected by drugs or alcohol that you failed to have proper control of the vehicle. And I would suggest that if somebody had a blood alcohol reading of, let’s say, 0.2 — so four times the legal limit — that would quite easily fit into the culpable driving category.

One of the things about all three of these charges is that they’re some of the very few criminal offences where the person hasn’t intended to commit an offence. And what I mean by that is if they intended to have the accident, it would be a murder charge. Quite often the victims of culpable driving or dangerous driving charges are actually the people who are sitting in the car with the driver, or friends of the driver.

Why would both drivers in the two recent cases have been charged with dangerous driving causing death, as opposed to careless driving, or culpable driving causing death?

With the case of the person who did get the term to serve [Scollary], I think the allegation in relation to his driving was that he had been swerving and swerved off the road. And so that would have been the dangerous driving aspect of his charge.

In relation to the allegations of the woman who did not receive the term of imprisonment [Rodda], my understanding there was that she was not speeding, she was basically on the road, and I think the SMS messaging had happened beforehand and there was no allegation that she was being distracted by that at the time. It was simply that she just didn’t see the cyclist. She would have been looking to plead not guilty to the dangerous driving on the basis that, well, “I wasn’t driving dangerously, but perhaps it might have been careless driving.”

And then what I think has happened, based on the articles that I’ve read — and I don’t know these cases personally, I only know from what’s being said through the media — is that she got a sentence indication from the judge that said “If you plead guilty to this charge, because I will view it as being at the lowest or the lower end of the scale in relation of seriousness of that offence, then I will not sentence you to a term of imprisonment.” And given that sentence indication, she took it and then decided to plead guilty.

Going back to the first guy [Scollary], I know that he had a blood alcohol reading of 0.067, which is over the limit but the judge made a finding that that wasn’t necessarily what led to the accident being caused. If it had been found that the accident was caused due to his high blood-alcohol rating, then he would have been facing a charge of culpable driving.

What are some of the things a judge will take into account when sentencing someone who’s been charged with dangerous driving causing death?

There are a number of general sentencing principles: rehabilitation, punishment, general deterrence (which is trying to deter other members of the community not to commit that type of offence), specific deterrence (which is trying to deter that particular offender not to come back and commit that offence), denunciation, and protection of the community. And it’s a weighing up of all of those factors.

Things that the judge then needs to also take into account are what is listed in subsection 5 of the Sentencing Act. Things that weigh quite heavily on the sentence are any prior criminal history — so if somebody has a bad driving history and then they kill somebody when they’re driving, they’re going to get a worse penalty.

It sounded as though, in relation to both of those matters which have gone through the media recently, neither of them had any prior conviction. And if they had, then that would have been taken into account and they would have got a worse sentence.

Current sentencing practices are also taken into account. There are some charges which, by definition within the Sentencing Act, are considered to be serious enough that they have legislated standard sentencing — which for example says that for a murder charge, the expected length of sentence should be 25 years imprisonment. Culpable driving causing death is a charge that has a standard sentence of eight years.

For the ones that don’t have standard sentencing, what you can do is look at what other people have got in the past and from that, you can judge a range of what would be a higher-end sentence, what would be a middle-of-the-range sentence, and what would be a lower sentence. And then you can look at if there’s any aggravating or mitigating features of the crime.

So within a dangerous driving charge, even within the two that we just had, there can be a significant difference in the aggravating features of those offences. In relation to one [Rodda] there didn’t seem to be any aggravating features, aside from the fact that she was texting earlier, but because they can’t show that that was happening at the time it can’t be considered an aggravating feature of the dangerous driving. It really seemed as though she wasn’t speeding, she wasn’t drifting in and out of her lane, and it was just simply a case of she didn’t see the cyclist and she hit him.

In relation to the other one [Scollary], we’ve got an aggravating feature. Even though it wasn’t considered to be so serious that the judge thought it was a contributing factor, it’s still an aggravating feature that he was above .05 at the time and it’s an aggravating feature that he was drifting in and out of his lane, which I think ultimately is what actually caused the accident. So that dangerous driving charge would be considered to be a more serious example of a dangerous driving charge than the first one with the female offender.

And so if I was appearing for the female, the one that ended up with no time in custody, I would look at the current sentencing practices — i.e. the stats, the data which show what a high-level, a mid-level and a low-level sentence is for that charge, and I would submit that in these particular circumstances that her level of criminality, or the objective level of seriousness of the offence, is at the lower end of that scale, and therefore, she should get a sentence in that lower range. And that lower range is non-custodial.

And that ultimately, that might be the issue that many people have with sentencing for the charge of dangerous driving causing death. In situations where somebody has died, it can seem unfair that the person that has caused that accident, whether they meant to or not, ends up not going to jail. But that’s what the current sentencing practices are in relation to that charge.

How does the fact both victims are cyclists affect things here?

I ride bikes and whenever a driver cuts me off, geez, I let them know it because I’m aware that a very small mistake on behalf of a driver can cause a significant impact on a cyclist.

But on the charge of dangerous driving causing death, it’s a given that the other person’s died — because that’s one element of the charge. So then you’ve got to look at the actual criminality, how bad they were driving at the time. And when it comes to accidents that involve cyclists, because the cyclist is on the road with the car it doesn’t take very much inattention or bad driving on behalf of the driver to cause an accident with a cyclist that ends up having the cyclist pass away.

So whilst cyclists feel that we should get more protection because we’re quite vulnerable on the road, the reality of the situation, according to the law, is that it’s highly likely that accidents that involve the deaths of cyclists probably are at the lower end of the seriousness of accidents that cause the death of people.

Because, for example, if in that first case [Rodda]; if that cyclist had been a car that was driving along slowly on the same piece of road and the woman had rear-ended it, it just would have been two people that maybe got some whiplash, and that’s all.

And so I know that it certainly feels as though that, because cyclists are vulnerable people on the road, that the drivers who run into us should get higher penalties. They might be facing a more serious charge than they would if it was another motor vehicle because there wouldn’t have been that serious injury or death [but] the actual level of criminality is probably much lower than in cases where two vehicles have had an accident and someone died.

The strange thing is if it was a pedestrian, then in order for a pedestrian to get hit by a car, the car would most likely — if they’re going to be at fault — would have to leave the road. And then their level of criminality would probably be significantly higher because they’ve been driving in such a manner that … not only have they caused an accident, but they’ve left the road, mounted the footpath, and run into the pedestrian.

And you can see how the aggravating features on that charge of potentially dangerous driving causing death would be greater than the driver that doesn’t see the bicycle and that either cuts in front of them or just runs straight into the back of them.

You’ve mentioned the response from the cycling community, particularly to the Jason Lowndes case. There is a feeling that the sentence that was handed down is just completely insufficient. How do you think we as cyclists should reconcile the fact that this is seen as sufficient punishment in the eyes of the law, with the fact it really doesn’t feel like it?

It’s difficult. And part of the issue is, it’s not a situation where the person has gone out and intentionally gone to hit a cyclist. It is an accident. And in that case, based on the facts that were alleged in the article, I can see how that case is borderline. And I’m sure that’s what she [the driver] was aiming for: more of a careless driving charge where it’s just “I didn’t see them”.

It’s exceedingly difficult and I think probably the only way that we can reconcile it is that, in that particular situation, that person didn’t have any intention to go out and hit a cyclist or do anything wrong on that day.

With the guy that did go to jail [Scollary], I haven’t seen the breakdown of the sentence, but when I have represented people that have had a dangerous driving causing serious injury charge and also [a] fail to stop and render assistance [charge], even though it’s a lesser maximum penalty, they tend to get a greater penalty for failing to render assistance than they do for causing the accident.

And potentially the reason for that is we’ll never know whether if the offender on that occasion, if he had gone over and tried to help, or if he called triple zero straight away, whether that would have made any difference in relation to whether the cyclist had survived or not.

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