It is not "dangerous" to drive into a cyclist

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London Boy
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Re: It is not "dangerous" to drive into a cyclist

Postby London Boy » Tue Sep 04, 2018 8:38 pm

AdelaidePeter wrote:
biker jk wrote:
AdelaidePeter wrote:Beggars belief. No doubt it wasn't deliberate, but how can it not be dangerous?

Defence barrister Laura Reece, are you proud of yourself?


What about the jury? Outlandish. :x


I know. Not to mention the driver himself (Caleb Wills), who should have been ashamed and pleaded guilty.

But I do put a lot of blame on lawyers in these sort of situations, because they know the tricks of the trade.

Don't blame the lawyers, blame the law.

Lawyers have no option but to argue their client's case as best they can. It is legally required of them, and the Legal Services Commission (or the equivalent in your state) makes sure of it.

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Wed Sep 05, 2018 2:17 pm

London Boy wrote:Lawyers have no option but to argue their client's case as best they can. It is legally required of them, and the Legal Services Commission (or the equivalent in your state) makes sure of it.


And of course lawyers have no input at all on law, the shape of our judiciary and how it works.... :?

The same argument as yours is used about financial advisers, bankers and various other professions that have expanded into large rent-seeking operations. When the foxes are later in charge of the hen houses where is the incentive to change?

Individuals lawyers no, I don't blame them. But as a group they can definitely bear a significant degree of blame for the legal landscape.


The same argument is used for companies acting like psychopaths, they have a after all they have a obligation to maximise profits.
https://www.psychologytoday.com/au/blog ... -psychotic

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Re: It is not "dangerous" to drive into a cyclist

Postby fat and old » Wed Sep 05, 2018 4:31 pm

I think Biker jk was on the money. Dude had a fair trial. There were lawyers on both sides, a judge presiding. The jurors had the final say. Our peers. Want to blame anyone? Blame society.


TBH, that's the answer to most of cycling's ills. Society. We are an out group, a minority. Funny clothing. Obstructions on the roads. etc etc etc. Society hates us. Not the law.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Wed Sep 05, 2018 5:27 pm

fat and old wrote:I think Biker jk was on the money. Dude had a fair trial. There were lawyers on both sides, a judge presiding. The jurors had the final say. Our peers. Want to blame anyone? Blame society.


Maybe, but in other areas there are instances where courts have been much more lenient than was originally intended by legislators (IMHO). Of course then it comes back to legislators to toughen up the rules.

TBH, that's the answer to most of cycling's ills. Society. We are an out group, a minority. Funny clothing. Obstructions on the roads. etc etc etc. Society hates us. Not the law.


I wouldn't agree because, as was pointed out on the last page, there's the same sort of result for other road deaths. Any road death is an "oopsie" unless it hits one of the "hot buttons" like drag racing, drunk driving, etc.

If I had my way, there would be some sort of directive that if the driver is at fault and causes a death, then that's automatically deemed "dangerous" by definition. There already exists the aggravated offence for the "worse" cases like drag racing etc.

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Re: It is not "dangerous" to drive into a cyclist

Postby fat and old » Thu Sep 06, 2018 10:20 am

AdelaidePeter wrote:
I wrote:TBH, that's the answer to most of cycling's ills. Society. We are an out group, a minority. Funny clothing. Obstructions on the roads. etc etc etc. Society hates us. Not the law.


I wouldn't agree because, as was pointed out on the last page, there's the same sort of result for other road deaths. Any road death is an "oopsie" unless it hits one of the "hot buttons" like drag racing, drunk driving, etc.



Yes, because society wishes it to be that way.


Of course then it comes back to legislators to toughen up the rules.


They will toughen up the rules according to society's wishes, or what they perceive as being best for society.


None of this detracts from my point...the law does not hate cyclists. The law is an inanimate object. It can't hate.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Thu Sep 06, 2018 11:24 am

fat and old wrote:
AdelaidePeter wrote:
I wrote:TBH, that's the answer to most of cycling's ills. Society. We are an out group, a minority. Funny clothing. Obstructions on the roads. etc etc etc. Society hates us. Not the law.


I wouldn't agree because, as was pointed out on the last page, there's the same sort of result for other road deaths. Any road death is an "oopsie" unless it hits one of the "hot buttons" like drag racing, drunk driving, etc.



Yes, because society wishes it to be that way.


I'm not convinced society wants it that way. I think it's more a case that society is ignorant. And a big part of the problem is the poor way this is reported - if a driver is not charged, the story tends to sink without a trace (I started a thread on this a couple of months ago). So many people are ignorant of the fact that many death drivers get off pretty well scot free, whether the victim is a cyclist, or anyone else. I think with enough information and agitation this can change - but it will take a lot of time and effort.

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Re: It is not "dangerous" to drive into a cyclist

Postby redsonic » Thu Sep 06, 2018 7:33 pm

Texting driver found guilty of dangerous driving causing death but does not lose her licence whilst waiting for sentencing.
ABC News
What do you have to do?
Interesting that the first jury was discharged while deliberating a verdict and this is a retrial.

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Re: It is not "dangerous" to drive into a cyclist

Postby find_bruce » Thu Sep 06, 2018 10:32 pm

redsonic wrote:Texting driver found guilty of dangerous driving causing death but does not lose her licence whilst waiting for sentencing.
ABC News
What do you have to do?
Interesting that the first jury was discharged while deliberating a verdict and this is a retrial.

As I said on the Moron Motorists thread
find_bruce wrote:I really dislike sloppy journalism. There is an automatic disqualification for of 3 years unless the Court orders a lesser period of at least 12 months - Road Transport Act s 205(2), so the absence of a decision means she gets the max 3 years. The period of disqualification will be extended by any prison term

[edit] - I thought it was in NSW, but I was wrong - it was in WA & there is no automatic suspension. AdelaidePeter linked to the News,com.au story which includes "Judge Scott said he did not think it was necessary to ban her from driving before she is sentenced on October 18." - ie she still may lose her licence, but not before sentencing.[/edit]
Last edited by find_bruce on Fri Sep 07, 2018 4:08 pm, edited 1 time in total.

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Re: It is not "dangerous" to drive into a cyclist

Postby fat and old » Fri Sep 07, 2018 8:33 am

AdelaidePeter wrote:
fat and old wrote:
AdelaidePeter wrote:
I wouldn't agree because, as was pointed out on the last page, there's the same sort of result for other road deaths. Any road death is an "oopsie" unless it hits one of the "hot buttons" like drag racing, drunk driving, etc.



Yes, because society wishes it to be that way.


I'm not convinced society wants it that way. I think it's more a case that society is ignorant. And a big part of the problem is the poor way this is reported - if a driver is not charged, the story tends to sink without a trace (I started a thread on this a couple of months ago). So many people are ignorant of the fact that many death drivers get off pretty well scot free, whether the victim is a cyclist, or anyone else. I think with enough information and agitation this can change - but it will take a lot of time and effort.



TBH, I'm only speaking on the cyclist POV. And I find it hard to believe that society is ignorant on this matter. There's enough reporting on various motor vehicle caused deaths to go around that I doubt anybody is unaware of at least one case where they think "wow, that's ridiculous". Problem is that it's rare for society to reach a consensus on any particular individual death. More; society may well sympathise and demand action when an emotive case comes up....think Pollett and the violin....but are loathe to actually have to wear the consequences.....think the opposition to Minimum Overtaking Distances. At that point we revert to "those bloody cyclists". How many times do we see the same attitudes from the OP lawyer....

His defence barrister, Laura Reece, asked jurors "to reflect on what you know" about accidents.
"The expression is: '(There) but for the grace of God go I'," she said today.
"The central idea of that saying is accidents can happen. Even attentive drivers cannot see people on the road and have accidents.
"I suggest to you that this is one of those cases."



I'll give lawyers one thing. Their job is to get their client off the hook. This one did it by appealing to the society that shares the same roads as the driver. If society valued us as human beings rather than viewing us as a living obstruction that really shouldn't be there the outcome may well have been different. Or this one, a hit run in Coburg last year

https://www.news.com.au/national/victor ... e722772c64
A WOMAN, who left a 13-year-old girl for dead while she was out cycling, has escaped a jail term for fleeing the scene.

“You left (the girl) for dead. You ought to have known she was seriously injured in the collision,” County Court Judge Gabriele Cannon told Nguyen during sentencing today.


followed by


The judge told Nguyen there was “nothing wrong with your driving” in the lead up to the November 5 collision which left the victim in hospital with serious head injuries.


and finally


Judge Cannon said the girl had been seen “driving her bike erratically” and it was “only a matter of time before she was hit by a car”.



The underlying issue is most motorists don’t view cyclists as legitimate road users (or in the case above, legitimate humans). The slower speed and greater vulnerability of riders isn’t acknowledged, accepted or duly allowed for by drivers. If that's not society having it's own way I don't now what is.


But hey, lets just have more kumbuyah sessions and white bikes and peaceful rides In protest. It makes us feel good and gives society the reassurance that there's nothing to fear from us cyclists. Don't wanna upset them, do we Silentc? :lol:

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Re: It is not "dangerous" to drive into a cyclist

Postby warthog1 » Fri Sep 07, 2018 4:20 pm

fat and old wrote:

The underlying issue is most motorists don’t view cyclists as legitimate road users (or in the case above, legitimate humans). The slower speed and greater vulnerability of riders isn’t acknowledged, accepted or duly allowed for by drivers. If that's not society having it's own way I don't now what is.


But hey, lets just have more kumbuyah sessions and white bikes and peaceful rides In protest. It makes us feel good and gives society the reassurance that there's nothing to fear from us cyclists. Don't wanna upset them, do we Silentc? :lol:


Sorry about any failbook association but I like that post F&O.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Fri Sep 07, 2018 10:17 pm

fat and old wrote:
The judge told Nguyen there was “nothing wrong with your driving” in the lead up to the November 5 collision which left the victim in hospital with serious head injuries.


and finally

Judge Cannon said the girl had been seen “driving her bike erratically” and it was “only a matter of time before she was hit by a car”.



By all accounts, the cyclist was riding against traffic on the wrong side of the road, so I'd say the judge's comments were accurate, sadly.

There's no excuse for Nguyen failing to stop, but it sounds like the collision itself was not her fault.

EDIT: It's still terrible behaviour, but it's a rather different case, more about being a bad human than a dangerous driver. I get more angry about cases such as the one which started this thread (killing of Richard Burden), or the Richard Pollett case, where the law has got to the point where it's not such a bad thing to drive badly and kill a cyclist.

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Re: It is not "dangerous" to drive into a cyclist

Postby London Boy » Sat Sep 08, 2018 11:49 pm

human909 wrote:
London Boy wrote:Lawyers have no option but to argue their client's case as best they can. It is legally required of them, and the Legal Services Commission (or the equivalent in your state) makes sure of it.


And of course lawyers have no input at all on law, the shape of our judiciary and how it works.... :?

Input, yes, just like any number of professions. Decisions? Only if, coincidentally, the minister or MP happens to be (or to have been) a lawyer. Which is true in some cases and not true in more.

human909 wrote:The same argument as yours is used about financial advisers, bankers and various other professions that have expanded into large rent-seeking operations. When the foxes are later in charge of the hen houses where is the incentive to change?

Individuals lawyers no, I don't blame them. But as a group they can definitely bear a significant degree of blame for the legal landscape.

Except that lawyers have a fiduciary duty to their clients that they are bound to comply with.

Financial advisers should have the same duty but, as we speak, they do not. It was, I believe, a decision of the current government not to impose that duty. Bankers' duties are to the bank and its shareholders, not to the customer.

As for a group bearing responsibility, look first to the electorate. They vote the government in, they tell the government what they want.

human909 wrote:The same argument is used for companies acting like psychopaths, they have a after all they have a obligation to maximise profits.
https://www.psychologytoday.com/au/blog ... -psychotic

No they don't. The directors of companies have an obligation, fiduciary in nature, to act for the benefit of the members (i.e. shareholders). That may mean maximising profits, but more often it means maximising shareholder value, which is different. One part of maximising shareholder value is not exposing shareholders to regulatory risk by, for example, not breaking the law.

That said, and regardless of the relevance (or otherwise) of financial planners or companies, I dare say that if you got into legal strife, you'd want someone on your side and only your side, to argue your case and get the best result for you.

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Sun Sep 09, 2018 5:22 pm

Surely you jest?

What education and professional background do judges come from? What policy writers? Legal policy advisors?

No dispute from me about wanting a lawyer to act in my interests. But that wasn't the point. The point was your handwashing and denial of the influence of lawyers as a group on the legal system.

You said "don't blame the lawyers, blame the law". Which professional groups write law?

(It's a given than politicians and thus the voting public also I influence the legal landscape.)

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Re: It is not "dangerous" to drive into a cyclist

Postby London Boy » Sun Sep 09, 2018 6:57 pm

human909 wrote:Surely you jest?

What education and professional background do judges come from? What policy writers? Legal policy advisors?

No dispute from me about wanting a lawyer to act in my interests. But that wasn't the point. The point was your handwashing and denial of the influence of lawyers as a group on the legal system.

You said "don't blame the lawyers, blame the law". Which professional groups write law?

(It's a given than politicians and thus the voting public also I influence the legal landscape.)

The politicians DECIDE the legal landscape. The lawyers INFLUENCE it but, as you might gather if you read Proctor (or the equivalent in your state), that influence is limited and waning. The voting public influence it more.

I didn't get your views on financial advisors, bankers, companies and so on. Did you decide that they were, after all, not relevant?

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Re: It is not "dangerous" to drive into a cyclist

Postby Scintilla » Sun Sep 09, 2018 7:07 pm

Judges and Justices (most of whom come from a legal background) also make the law. Through precedent in common law, and the interpretation of the wording of parliamentary statutes.

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Re: It is not "dangerous" to drive into a cyclist

Postby fat and old » Sun Sep 09, 2018 9:45 pm

Scintilla wrote:Judges and Justices (most of whom come from a legal background) also make the law. Through precedent in common law, and the interpretation of the wording of parliamentary statutes.


In no way at all am I a lawyer, or even a lawyers pencil, I am struggling to understand how a precedent or interpretation is perceived to be “making a/the law”? Making a decision based on a law I can see. Following a precedent when defending/prosecuting someone for breaking a law I can see. But do these mean that a new law is enacted?

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Sun Sep 09, 2018 10:00 pm

London Boy wrote:The politicians DECIDE the legal landscape.

Again you leave me in shock with this response.

As I understand it you are a lawyer or otherwise legally trained? If so I struggle to comprehend how you can hold this view. The legal lanscape is made up of decades of precedents. Decades of legislation. And can your really tell me with a straight face that legal professionals don't play a significant if not dominate role?

London Boy wrote:I didn't get your views on financial advisors, bankers, companies and so on. Did you decide that they were, after all, not relevant?

No they are quite relevant but since that analogy didn't get traction with you then I didn't continue with it. But if you wanted to inform yourself about rent-seeking then you are feel free to educate yourself on that.


fat and old wrote:In no way at all am I a lawyer, or even a lawyers pencil, I am struggling to understand how a precedent or interpretation is perceived to be “making a/the law”? Making a decision based on a law I can see. Following a precedent when defending/prosecuting someone for breaking a law I can see. But do these mean that a new law is enacted?

A legitimate question for a layman to the legal profession.

https://en.wikipedia.org/wiki/Common_law
Reading the first sentence probably would suffice.

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Re: It is not "dangerous" to drive into a cyclist

Postby London Boy » Mon Sep 10, 2018 2:07 pm

human909 wrote:
London Boy wrote:The politicians DECIDE the legal landscape.

Again you leave me in shock with this response.

As I understand it you are a lawyer or otherwise legally trained? If so I struggle to comprehend how you can hold this view. The legal lanscape is made up of decades of precedents. Decades of legislation. And can your really tell me with a straight face that legal professionals don't play a significant if not dominate role?

Yes, a lawyer. I don't do criminal law, mind, so there is that qualification.

The law is made up partly of precedents but, as I said, lawyers' influence has been declining for some time. And if you consider 'influence' to mean that legally trained professionals draft the laws you'd be right, but they don't determine the content of those laws. That is for the politicians. The lawyers job is to speak the language and to tell the politicians how the new law interacts with existing laws. It's a bit like an accountant's role in setting out the tax rules.

One thing you might also note is the use of privative clauses. These are sections of acts designed specifically to keep the courts out of things. The Migration Act relies intensely on those - how else do you think the pollies get away with what they do on Nauru, etc?

Whatever you make of judge-made law, it can be superseded by statute at any time the parliament decides to do it. What you should notice is the statute book becoming larger as what used to be judge-made law is codified. That's a way of saying that, in the old days, judges had a lot more scope to set out the law, but not these days. Parliament is ever more tightly defining what the law is, leaving the judges with a lot less to do and a lot less say. Also think about the interpretation acts, which are highly detailed rules, made by parliament, about how the courts must interpret statute. No discretion there either. See also, for example, sentencing policy, which determines what the judge can and can't do, and it is set by the politicians. Remember that when you complain about lenient sentences.

Keep in mind also that we're discussing a case about a bloke being found not guilty of killing another man. The lawyer made a successful argument and the jury (which, please note, does not contain any lawyers) made its decision. Oddly enough, you'd be more likely to get a guilty verdict in a judge-only trial. More focus on law and less on social expectations.

human909 wrote:
London Boy wrote:I didn't get your views on financial advisors, bankers, companies and so on. Did you decide that they were, after all, not relevant?

No they are quite relevant but since that analogy didn't get traction with you then I didn't continue with it. But if you wanted to inform yourself about rent-seeking then you are feel free to educate yourself on that.


I know what rent-seeking is. It's what bankers do. Financiers. Any large corporate with an 'entertainment' budget. I think equating bankers and lawyers misses the point. That's why it didn't get traction.

human909 wrote:
fat and old wrote:In no way at all am I a lawyer, or even a lawyers pencil, I am struggling to understand how a precedent or interpretation is perceived to be “making a/the law”? Making a decision based on a law I can see. Following a precedent when defending/prosecuting someone for breaking a law I can see. But do these mean that a new law is enacted?

A legitimate question for a layman to the legal profession.

https://en.wikipedia.org/wiki/Common_law
Reading the first sentence probably would suffice.

Stare decisis. It means that if a law is applied to similar facts, the decision made in later proceedings should be consistent with previous decisions of the same or superior court.

However, you need to be careful, because if a law changes then that body of 'judge-made' law disappears. The most reliable precedent deals with e.g. constitutional issues, where the written law changes a lot less often. Think Engineer's Case, for example. Everything else is up for grabs.

This is for common law countries only. Civil law countries operate on the basis of more generalised doctrine, so is less predictable but in a lot of ways more sensible.

However, we come back to the key point which is that a lawyer acts for the client and the client alone, and is obliged to use all the available tricks. That includes playing on the jury's subjective hopes and fears. And it was a jury that returned the not guilty verdict, not the lawyer or the judge.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Tue Sep 18, 2018 2:57 pm

Neither of these cases (which have both come up on these boards already) are about cyclist deaths, but the contrast is disturbing:

Case 1: WA woman texting while driving, kills her passenger. Tried and found guilty of dangerous driving causing death. Receives bail and does not even lose her licence before sentencing in October: http://www.abc.net.au/news/2018-09-06/t ... h/10210338

Case 2: NSW man, high on ice, 2 previous drink-drive convictions, circumvented an interlock device then killed a policeman on a motorcycle. He is refused bail and so is in custody until January, even though the trial hasn't happened yet. https://www.theage.com.au/national/vict ... 5048z.html

Now I admit the NSW man is at the very high end of people likely to reoffend, but I can't help thinking that courts see a drugged driver as a "bad man" while a texting woman is a "good woman who made a mistake anyone can make". The courts and laws need to stop treating traffic deaths so lightly. I think a good start (and I think I've already said this in this thread) would be to remove the distinction between dangerous and negligent driving, or whatever the terms are state to state. If your driving kills someone, and you were at fault, then that should be dangerous driving, by definition.

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Re: It is not "dangerous" to drive into a cyclist

Postby DavidS » Tue Sep 18, 2018 11:29 pm

I think you might be able to come up with better examples Adelaide Peter, but the salient point is correct. Is this not the reason that the permission to drive a car requires a licence? There is a level of responsibility to being in control of a vehicle which can cause death and injury if the driver is inattentive or otherwise distracted. Negligent or dangerous, there is a distinction, but both should attract the same penalty. Being negligent in control of a dangerous motor vehicle is dangerous.

It has always irritated me how flippantly people drive. Not only as a cyclist, but decades ago as a tram driver, I am constantly amazed that drivers feel they don't really need to pay attention, plan ahead etc, but it is just accepted as normal behaviour to drive around without paying attention. The only accident I ever had in a tram was smacking into a car which pulled out in front of my 20 tonne non-steering tram without looking - that was one less taxi on the road and thankfully no-one was hurt. But what possessed the driver to not bother looking? Negligent or dangerous? Doesn't matter, both are culpable behaviours.

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Re: It is not "dangerous" to drive into a cyclist

Postby human909 » Wed Sep 19, 2018 10:47 am

London Boy wrote:However, we come back to the key point....

Again shifting the goal posts. The point of contention was that lawyers don't heavily influence the landscape of the legal system.

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Re: It is not "dangerous" to drive into a cyclist

Postby Jmuzz » Wed Sep 19, 2018 3:05 pm

$1500 and keep license for killing a motorcyclist
https://www.ntnews.com.au/news/crime-co ... ad9707b02f

Same thing, killing people with cars is just considered a "whoopsie".

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Thu Sep 20, 2018 9:56 am

Jmuzz wrote:$1500 and keep license for killing a motorcyclist
https://www.ntnews.com.au/news/crime-co ... ad9707b02f

Same thing, killing people with cars is just considered a "whoopsie".


Even if you've got a criminal record http://www.territorystories.nt.gov.au/b ... RIMARY.PDF

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Re: It is not "dangerous" to drive into a cyclist

Postby London Boy » Mon Sep 24, 2018 8:54 pm

DavidS wrote:I think you might be able to come up with better examples Adelaide Peter, but the salient point is correct. Is this not the reason that the permission to drive a car requires a licence? There is a level of responsibility to being in control of a vehicle which can cause death and injury if the driver is inattentive or otherwise distracted. Negligent or dangerous, there is a distinction, but both should attract the same penalty. Being negligent in control of a dangerous motor vehicle is dangerous.

Lots of people argue for equal penalties, but the practice is different. It comes down to a couple of factors.

Culpability is one factor - there is a difference between being negligent, reckless and willful, and we need to recognise that.

The second and, perhaps more important factor revolves around what regular people see as being criminally wrong and what they think ought to be punished.

Regular people sit on juries, and make findings of guilt or otherwise. The different levels of motoring offence came about because of the jury's reluctance to convict for more serious offences. A jury will convict for dangerous driving causing death when, on facts that would otherwise justify a conviction, it won't convict for manslaughter. Same with negligent driving as opposed to dangerous driving.

A problem is, I think, that we do not take anything like enough driving licences away, and we do not take them away for long enough. And since driving is a privilege and not a right, it should be a lot simpler to take licences away than it is. And for that, blame society.

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Re: It is not "dangerous" to drive into a cyclist

Postby AdelaidePeter » Fri Oct 05, 2018 10:38 am

... but if you're not careful playing backyard cricket, you could get slugged for $700k http://www.abc.net.au/news/2018-10-05/c ... t/10339364

I'm not saying this guy didn't deserve it. But I'm sure he was less careless than most drivers who drive carelessly and kill someone, and get off with a slap on the wrist.

And yes I know there is a difference between civil and criminal cases, and drivers are insured against this (if they're registered). But still, something is not right.

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