Cyclist dead: 6 months loss of licence

[Peter]

I have a feeling that part of the reason such light penalties are handed
down for cyclist deaths and injuries is that lots of drivers, including
judges, fail to look out for cyclists. They think that kiliing a cyclist
is bad luck more than a lack of skill and ability.

Peter

http://tinyurl.com/233tg7
Mackay Daily Mercury

Court gives suspended sentence over accident
09.05.2007

WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off his
bicycle she phoned triple 0 and nursed the poor man until help arrived.

Just two days later Paddy Harte, a retired cane farmer, died in hospital
from his injuries.

His death devastated Mr Harte's family because, even though he was a
bachelor, he was caring from his 91-year-old mother at the time and she
died about one year after he did.

The fatality also shocked Mrs Beer, 33, who faced the District Court in
Mackay yesterday and pleaded guilty to dangerous driving causing death.

"It could have happened to any driver," Mrs Beer said when she left the
court with a suspended jail sentence.

Mrs Beer was driving to visit her mother on November 16, 2005, about
11am. One of her children was in the back seat and a cousin was a front
seat passenger.

She drove up Lawrie Street and, at the intersection with Beach Road, she
stopped to give way to Mr Harte on his bicycle.

She then turned into Beach Road and overtook Mr Harte. About 200m up the
road she indicated to turn left off the road into a property and as she
turned her passenger yelled out: "There's a bike."

Mr Harte apparently tried to avoid hitting the car but ran into a gutter
and was thrown onto a concrete driveway suffering multiple injuries.

Crown prosecutor Sarah Farnden said Mrs Beer was charged because she
failed to keep a proper lookout and admitted to police that she did not
use her rear-view mirrors to check if the bicycle was behind her.

Mrs Beer was jailed for 18 months, suspended immediately for 18 months,
and she was disqualified from driving for six months.

[Darryl C]

In article u>,
(Peter) wrote:

> I have a feeling that part of the reason such light penalties are handed
> down for cyclist deaths and injuries is that lots of drivers, including
> judges, fail to look out for cyclists. They think that kiliing a cyclist
> is bad luck more than a lack of skill and ability.
>
> Peter
>
> http://tinyurl.com/233tg7
> Mackay Daily Mercury
>
> Court gives suspended sentence over accident
> 09.05.2007
>
> WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off his
> bicycle she phoned triple 0 and nursed the poor man until help arrived.
>
(snip)
>
> "It could have happened to any driver," Mrs Beer said when she left the
> court with a suspended jail sentence.
>

Unfortunately, because every driver is capable of this manoeuvre it can
also happen to any cyclist.

It was simply inattentiveness by the driver that caused a situation
where the deceased, rightly or wrongly, perceived he was in danger of
being struck by the car. In my opinion, the accident is entirely her
fault (to the extent that I know the facts).

He had as much right to be on the road as she did but the court appears
to take the view that it was the cyclist was in the wrong place at the
wrong time.

regards,
Darryl

[Darryl C]

In article >,
Darryl C > wrote:

> In article u>,
> (Peter) wrote:
>
> > I have a feeling that part of the reason such light penalties are handed
> > down for cyclist deaths and injuries is that lots of drivers, including
> > judges, fail to look out for cyclists. They think that kiliing a cyclist
> > is bad luck more than a lack of skill and ability.
> >
> > Peter
> >
> > http://tinyurl.com/233tg7
> > Mackay Daily Mercury
> >
> > Court gives suspended sentence over accident
> > 09.05.2007
> >
> > WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off his
> > bicycle she phoned triple 0 and nursed the poor man until help arrived.
> >
> (snip)
> >
> > "It could have happened to any driver," Mrs Beer said when she left the
> > court with a suspended jail sentence.
> >
>
> Unfortunately, because every driver is capable of this manoeuvre it can
> also happen to any cyclist.
>
> It was simply inattentiveness by the driver that caused a situation
> where the deceased, rightly or wrongly, perceived he was in danger of
> being struck by the car. In my opinion, the accident is entirely her
> fault (to the extent that I know the facts).
>
> He had as much right to be on the road as she did but the court appears
> to take the view that it was the cyclist was in the wrong place at the
> wrong time.
>
> regards,
> Darryl

As an addendum, I wrote a letter to the editor of the Mackay Daily
Mercury expressing my dismay at the suspended sentence.
I hope the cycling associations in Queensland also make their views
known.

regards,
Darryl

[[email protected]]

On May 9, 1:37 pm, (Peter) wrote:
> I have a feeling that part of the reason such light penalties are handed
> down for cyclist deaths and injuries is that lots of drivers, including
> judges, fail to look out for cyclists.

LOOK OUT FOR CYCLISTS they are all over the road like a drunk driver
so if one or two get hit by a car they dv it.

[cfsmtb[_170_]]

Darryl C Wrote:
>
> As an addendum, I wrote a letter to the editor of the Mackay Daily
> Mercury expressing my dismay at the suspended sentence.
> I hope the cycling associations in Queensland also make their views
> known.


Maybe worth forwarding on this to the GOM 'collective' via the BikeQLD
list (coo-ee donga!)
http://www.bikeqld.org.au/

Also please consider writing to the QLD Attorney-General.
http://www.justice.qld.gov.au/contact.htm


--
cfsmtb

[Duncan]

On May 9, 1:37 pm, (Peter) wrote:
> She drove up Lawrie Street and, at the intersection with Beach Road, she
> stopped to give way to Mr Harte on his bicycle.
>
> She then turned into Beach Road and overtook Mr Harte. About 200m up the
> road she indicated to turn left off the road into a property and as she
> turned her passenger yelled out: "There's a bike."

The typical "overtake and turn in front of bike" maneuver.

'could have happened to anyone'.. well, anyone distracted by their kid
in the back, yacking to their passenger in the front seat and not
paying attention to the road, yes.

[rooman[_133_]]

cfsmtb Wrote:
> Maybe worth forwarding on this to the GOM 'collective' via the BikeQLD
> list (coo-ee donga!)
> http://www.bikeqld.org.au/
>
> Also please consider writing to the QLD Attorney-General.
> http://www.justice.qld.gov.au/contact.htmApart from Brendan's Law's obligations to those involved in an accident
this brings the thought of minimum sentences where a life is lost and
the driver is adjudged negligent. I know courts look at many factors in
sentencing and often reasons given seem sketchy and cause commentators
and observers to draw conclusions that arnt there in the mind of the
judge...or are, but arnt explained clearly, or transparency is absent
altogether...

Sentences for negligently causing cycling deaths though seem to have a
consistent thread of apparent leniency, so a hard review of all the
sentences needs to be done and compared to other vehicular caused
sentences ( and a few other types) to see if that apparent trend is
real or a misconception. Checking the peer review stuff is part of my
research and not much on it yet...we have out news threads and blogg
references and some limited court stats, but hopefully there is a lot
more to come...anyone with some sources or references on this let me
know...please PM or here or WoJ...


--
rooman

[rooman[_134_]]

some delving general background on society attitudes and the key
players, motorists, bicyclists, police, judges, media here...

http://bicycleaustin.info/justice/whynojustice.html

it is from Austin texas, but they have a huge problem, bigger than
Australia's in total just about...and some very sad stats and alarming
outcomes for many hit- runs, and intentional harm cases...

one serious thought is that they submit most drivers would not stop
after knocking you down as they think they can get a way with it ( at
least we have Brendan's law here, for those that know about it!)

bottom line...society's attitude and respect for others.... when its
lacking ...lousy outcomes result for the aggrieved.


--
rooman

[Zebee Johnstone]

In aus.bicycle on Wed, 9 May 2007 16:00:50 +1000
rooman > wrote:
> Sentences for negligently causing cycling deaths though seem to have a
> consistent thread of apparent leniency, so a hard review of all the
> sentences needs to be done and compared to other vehicular caused
> sentences ( and a few other types) to see if that apparent trend is
> real or a misconception. Checking the peer review stuff is part of my

My suspicion is that all driving mishaps are considered accidents and
not negligent as a general thing. That the courts are aware that most
people aren't very skilled and are easily distracted. That's why there
are laws about machine guards and hours of work and making employers
liable for employee injury.

As there's no way to do OH&S for the roads really, I think most judges
find that it is all too easy for someone to get something wrong and
someone else get hurt, when but for a few seconds here or there, no one
would have been injured.

For example, consider the crash in the race in Canberra the other day.
What's the bet that the cyclist was doing something they'd done before?
A momentary lapse, was that worth a death sentence? If the car had been
a few seconds earlier or later up that road, then no harm no foul.

In that case, the one who made the mistake paid the price, but the same
idea is true in almost all road crashes. That a minor mistake becomes
a major because someone else was there.

Sure - no one should make minor mistakes. But they do, all the time.
The problem is that our society requires people to be in charge of 2 ton
of lethal weapon in order to function, the place would come to a quite
catastrophic halt without that requirement.

So courts, I think, recognise that small mistakes shouldn't have huge
consequences. And I think they also recognise that harsh sentences are
not deterrents. Never have been. Harsh sentences combined with high
detection rates are, but how to detect all those small mistakes when
there are a few million cars on the road?

Who would benefit from that woman getting a couple of years in jail?
Would it stop people making small mistakes that usually have no
consequence? Would it make a difference to how the driver in that
case drives? Is it worth the not inconsiderable cost to the taxpayer?

Zebee

[Theo Bekkers]

Zebee Johnstone wrote:

> My suspicion is that all driving mishaps are considered accidents and
> not negligent as a general thing. That the courts are aware that most
> people aren't very skilled and are easily distracted. That's why
> there are laws about machine guards and hours of work and making
> employers liable for employee injury.
>
> As there's no way to do OH&S for the roads really, I think most judges
> find that it is all too easy for someone to get something wrong and
> someone else get hurt, when but for a few seconds here or there, no
> one would have been injured.
>
> For example, consider the crash in the race in Canberra the other day.
> What's the bet that the cyclist was doing something they'd done
> before? A momentary lapse, was that worth a death sentence? If the
> car had been a few seconds earlier or later up that road, then no
> harm no foul.
>
> In that case, the one who made the mistake paid the price, but the
> same idea is true in almost all road crashes. That a minor mistake
> becomes a major because someone else was there.
>
> Sure - no one should make minor mistakes. But they do, all the time.
> The problem is that our society requires people to be in charge of 2
> ton of lethal weapon in order to function, the place would come to a
> quite catastrophic halt without that requirement.
>
> So courts, I think, recognise that small mistakes shouldn't have huge
> consequences. And I think they also recognise that harsh sentences
> are not deterrents. Never have been. Harsh sentences combined with
> high detection rates are, but how to detect all those small mistakes
> when there are a few million cars on the road?
>
> Who would benefit from that woman getting a couple of years in jail?
> Would it stop people making small mistakes that usually have no
> consequence? Would it make a difference to how the driver in that
> case drives? Is it worth the not inconsiderable cost to the taxpayer?

Totally agree with you Zebee, a moment's inattention should not equate to 15
years in goal. Did this incident also not require a moment's inattention on
the part of the victim? Would you or I not have predicted that a situation
was arising? There was no 'deliberately ran a red light at a crosswalk'
situation here. Certainly regrettable and the woman was seemingly extremely
upset by the result. I think she already has her life sentence. Have we not
all been in a traffic situation where we got a fright and no-one was to
blame but ourselves.

Theo

[rooman[_135_]]

Zebee Johnstone Wrote:
> In aus.bicycle on Wed, 9 May 2007 16:00:50 +1000
> rooman > wrote:
> > Sentences for negligently causing cycling deaths though seem to have
> a
> > consistent thread of apparent leniency, so a hard review of all the
> > sentences needs to be done and compared to other vehicular caused
> > sentences ( and a few other types) to see if that apparent trend is
> > real or a misconception. Checking the peer review stuff is part of my
>
> My suspicion is that all driving mishaps are considered accidents and
> not negligent as a general thing. That the courts are aware that most
> people aren't very skilled and are easily distracted. That's why there
> are laws about machine guards and hours of work and making employers
> liable for employee injury.
>
> (snip,,,all good comments)
>
> Who would benefit from that woman getting a couple of years in jail?
> Would it stop people making small mistakes that usually have no
> consequence? Would it make a difference to how the driver in that
> case drives? Is it worth the not inconsiderable cost to the taxpayer?
>
> Zebee
agree, the issue I see is the question, "is there in fact a trend for
lenient sentencing, or are we just perceiving one because we are too
close to the action ? ".

It is a common enough expression across the world that aggrieved
bicyclists are denied justice in judicial proceedings, police action
and the like .... so is this a reality or a perception or misconception
?

...on sentencing per se for deaths caused by driving dangerously, I
have been scouring the material and also reviewing sentencing criteria
and of course there are many aspects in any sentencing that are
weighed.

There were good comments made on the point on mandatory sentencing by
the Judicial Commission in NSW when they looked at sentences for deaths
caused by dangerous driving... and I reproduce the end summary here"

" -In advocating the regime of dangerous driving, the Staysafe
Committee stated that it was `critically important to recognise and
retain the court's sentencing discretion' and declined to recommend
mandatory minimum penalties [-'-35-'
(http://www.judcom.nsw.gov.au/st/st15/index.html#35)-]. Nevertheless,
the Court of Criminal Appeal has noted the intention of Parliament that
existing sentencing patterns `are to move in a sharply upward manner'
[-'-36-' (http://www.judcom.nsw.gov.au/st/st15/index.html#36)-]. The
appeal cases to date, each involving a young offender, already suggest
that effect is being given to that intention. Indeed, it is anticipated
that the outcome of sentencing in these cases will reveal a sharp
increase, not only in the proportion of cases attracting imprisonment
but also in the duration of the terms of imprisonment imposed.
Conversely, courts will find it increasingly difficult to justify the
imposition of non-custodial sanctions for these offences.- "

more info and the wider article is here:
http://www.judcom.nsw.gov.au/st/st15/index.html


--
rooman

[EuanB[_59_]]

rooman Wrote:
> Apart from Brendan's Law's obligations to those involved in an accident
> this brings the thought of minimum sentences where a life is lost and
> the driver is adjudged negligent. I know courts look at many factors in
> sentencing and often reasons given seem sketchy and cause commentators
> and observers to draw conclusions that arnt there in the mind of the
> judge...or are, but arnt explained clearly, or transparency is absent
> altogether...
>
> Sentences for negligently causing cycling deaths though seem to have a
> consistent thread of apparent leniency, so a hard review of all the
> sentences needs to be done and compared to other vehicular caused
> sentences ( and a few other types) to see if that apparent trend is
> real or a misconception. Checking the peer review stuff is part of my
> research and not much on it yet...we have out news threads and blogg
> references and some limited court stats, but hopefully there is a lot
> more to come...anyone with some sources or references on this let me
> know...please PM or here or WoJ...
I'm really not a fan of mandatory sentencing, zero tolerance yes but
not mandatory sentencing. That's not to say I disagree that sentencing
with respect to cyclist and pedestrian casualites is generally too
lenient, far from it. I'm just not convinced that mandatory sentencing
is the path to tread.

Unusually I can't justify that position, it's just a gut feeling that
it's a can of worms we, as a society, don't want to open.


--
EuanB

[Zebee Johnstone]

In aus.bicycle on Wed, 9 May 2007 17:13:07 +1000
rooman > wrote:
>
> It is a common enough expression across the world that aggrieved
> bicyclists are denied justice in judicial proceedings, police action
> and the like .... so is this a reality or a perception or misconception
> ?

I think it's probably both...

In that driving causing death is seldom treated in the way other deaths
are, cyclist or no, but cyclists hear about the deaths of other cyclists,
and the penalties, but not the deaths of non-cyclist road users and
the penalties.

I suspect if you look at all prosecutions for road deaths, that cyclists
aren't treated all that differently.

Some cases are going to be special - drunk and ploughing into peds for
example. That is always going to get more judicial sanction than say
the woman in Sydney who was a learner under instruction from a friend
and ploughed into a bunch of peds because she hit the acellerator rather
than the brake and then froze in horror.

Death and injury in both cases, but more culpability in one.

Hmm... not that there are that many cases of someone causing death via
accident/inattention except on the road. So it's hard to have anything
to measure the resulting penalty against.

Can't treat it the same way as deliberate killing, because "they are
out to kill you" cheat beating not withstanding, it isn't deliberate.
There is no intent.

The kicker is that it *looks* as though it is deliberate. It looks as
though the driver did it because the driver didn't care, didn't think
the cyclist deserved to live. I think it's more likely that the driver
was doing what they always did, but this time someone got in the way,
and the courts mostly recognise that.

For example, in this case, the driver didn't check the inside mirror
and why should she? There's never any thing there, never any reason.
But this time there was. (Of course she should have realised he was
there, she passed him, but she probably never checked that mirror when
turning left ever. She did the same as she'd always done.)

It is interesting how the view of negligence and responsibility is
different on the road compared to the workplace the only other place
where unintended deaths happen through negligence. WHich is, I think,
because of the unions. Until unions got really heavy and fought
hard for industrial safety people died on the job all the time due to
poor practices, and lack of care from the employer. There's no union
equivalent or employer equivalent on the roads. and no real way to
enforce care because there are too many variables.

I think cyclists and motorcyclists feel they are not cared about because
they identify as cyclists and motorcyclists. Car drivers don't indentify
as car drivers, so someone in a car getting killed doesn't make them think
"one of us". And the penalty handed out or not is of no interest to them.

Even if it is the same penalty as would get a two-wheeler riled.

Zebee

[Zebee Johnstone]

In aus.bicycle on Wed, 9 May 2007 17:13:07 +1000
rooman > wrote:
>
> agree, the issue I see is the question, "is there in fact a trend for
> lenient sentencing, or are we just perceiving one because we are too
> close to the action ? ".

Looking at the URL you gave
http://www.judcom.nsw.gov.au/st/st15/index.html

I see that where the driving isn't "dangerous", they have a specific
negligent driving charge. Which is presumably the charge most who
kill by inattention will cop.

There's a maximum penalty of 1 year imprisonment. That's the max, few
people ever get a max sentence.

I bet few people are imprisoned ever. No matter who they bowl over.

Zebee

[Paul Yates]

"Peter" > wrote in message
. com.au...
>I have a feeling that part of the reason such light penalties are handed
> down for cyclist deaths and injuries is that lots of drivers, including
> judges, fail to look out for cyclists. They think that kiliing a cyclist
> is bad luck more than a lack of skill and ability.
>
> Peter
>
> http://tinyurl.com/233tg7
> Mackay Daily Mercury
>
> Court gives suspended sentence over accident
> 09.05.2007
>
> WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off his
> bicycle she phoned triple 0 and nursed the poor man until help arrived.
>
> Just two days later Paddy Harte, a retired cane farmer, died in hospital
> from his injuries.
>
> His death devastated Mr Harte's family because, even though he was a
> bachelor, he was caring from his 91-year-old mother at the time and she
> died about one year after he did.
>
> The fatality also shocked Mrs Beer, 33, who faced the District Court in
> Mackay yesterday and pleaded guilty to dangerous driving causing death.
>
> "It could have happened to any driver," Mrs Beer said when she left the
> court with a suspended jail sentence.
>
> Mrs Beer was driving to visit her mother on November 16, 2005, about
> 11am. One of her children was in the back seat and a cousin was a front
> seat passenger.
>
> She drove up Lawrie Street and, at the intersection with Beach Road, she
> stopped to give way to Mr Harte on his bicycle.
>
> She then turned into Beach Road and overtook Mr Harte. About 200m up the
> road she indicated to turn left off the road into a property and as she
> turned her passenger yelled out: "There's a bike."
>
> Mr Harte apparently tried to avoid hitting the car but ran into a gutter
> and was thrown onto a concrete driveway suffering multiple injuries.
>
> Crown prosecutor Sarah Farnden said Mrs Beer was charged because she
> failed to keep a proper lookout and admitted to police that she did not
> use her rear-view mirrors to check if the bicycle was behind her.
>
> Mrs Beer was jailed for 18 months, suspended immediately for 18 months,
> and she was disqualified from driving for six months.

Nothing about there being a "Hell Drive" twice a day at peak hour when cars
clog the roads and could run over any cyclist?

Always terrible when anyone gets killed.

P

[Donga]

On May 9, 3:47 pm, cfsmtb <cfsmtb.2qa...@no-
mx.forums.cyclingforums.com> wrote:
> Darryl C Wrote:
>
>
>
> > As an addendum, I wrote a letter to the editor of the Mackay Daily
> > Mercury expressing my dismay at the suspended sentence.
> > I hope the cycling associations in Queensland also make their views
> > known.
>
> Maybe worth forwarding on this to the GOM 'collective' via the BikeQLD
> list (coo-ee donga!)http://www.bikeqld.org.au/
>
> Also please consider writing to the QLD Attorney-General.http://www.justice.qld.gov.au/contact.htm
>
> --
> cfsmtb

I dunno, I reckon you are all being a little harsh. As far as I can
see, she didn't run a red light, didn't deliberately swerve, didn't
drive off, didn't booze and pretend to be sober, didn't chat on the
mobile while doing her lippy, didn't do anything particularly
objectionable except a smidsy with a tragic end. Six months suspended
is regarded as a pretty serious consequence, particularly for a first-
time offender. I'm thinking "there but for the grace of Dog go I".

Donga

[Zebee Johnstone]

In aus.bicycle on Wed, 9 May 2007 18:08:58 +1000
EuanB > wrote:
>
> with respect to cyclist and pedestrian casualites is generally too
> lenient, far from it. I'm just not convinced that mandatory sentencing
> is the path to tread.
>
> Unusually I can't justify that position, it's just a gut feeling that
> it's a can of worms we, as a society, don't want to open.

Well, consider the case recently of a learner driver whose foot hit
the accellerator not the brake, and who froze in horror as the car
careered into a bunch of people on the footpath.

Several injured, I think at least one death.

Does that deserve jail time? Mandatory sentencing would be, I think,
a manifest injustice.

Blame the system that allows a learner to learn in a car without dual
controls, supervised by someone without any kind of training, but jail
the learner?

Zebee

[rooman[_138_]]

Zebee Johnstone Wrote:
> In aus.bicycle on Wed, 9 May 2007 18:08:58 +1000
> EuanB ...
>
> Blame the system that allows a learner to learn in a car without dual
> controls, supervised by someone without any kind of training, but jail
> the learner?
>
> Zebee
is it not that society is accepting of such situations of leniency, and
thus allows "softer" sentencing, & we who ride or closely affected by
each tragedy thus are too sensitive to that at times?

on vehicluar responsibility, I am inclined to think as UK Lord Chief
Justice Lane stated back in 1984, "-that any driver who fails to
realise that what he is doing at the wheel is creating an obvious risk,
is deserving of severe punishment"-

using a vehicle on the road is a priviledge not a right, but here so
far, we all seem to feel that a momentary lapse is ok but a purposeful
rage infraction is not... is there really a difference?, the
consequences are the same, the weapon is the same, the outcome is the
same and the obligation on the user of that weapon hasnt been
changed...is it just re-interpreted for the sake of the perpetrator's
ongoing life or is it really for the sake of society as was said above
"there but for the grace of..., go I.... etc"...

it is a serious question we really have to ask... and until it is
properly answered and addressed things probably wont change on the
roads...

here most of us have said, "Oh its too harsh, you cant send so and so
to gaol, she is a mom and we all could have been in the same
situation..."

that is exactly right , a fair observation in a fair society, but what
does that do for us going forward, will road deaths stop being
acceptable society prices for our wish to let each other off the
hook....and so being Devil's Advocate here....I put this
proposition...." -that is why we continue to have incidents which cause
death on our roads...we are NOT careful enough because we know that
society will let us off-"

true or not...

lets work this out...as it is too important not to..it starts with our
own feelings and beliefs, if we want to change the world we have to
understand where we are coming from and if we really want to go
there.....and the consequnces if do or if we dont...

we have a lot of work to do


--
rooman

[lelak]

> we all seem to feel that a momentary lapse is ok but a purposeful
> rage infraction is not... is there really a difference?,

I thought that "mens rea" was a fairly critical part of the legal
process:

http://en.wikipedia.org/wiki/Mens_rea




Lela

[rooman[_139_]]

just out, a paper from the UK exactly on point
[-l-e-f-t-]---*-A- -C-r-i-t-i-c-a-l- -R-e-v-i-e-w- -o-f- -t-h-e-
-L-e-g-a-l- -P-e-n-a-l-t-i-e-s- -f-o-r-*---
-[-/-l-e-f-t-]-
-[-l-e-f-t-]---*-D-r-i-v-e-r-s- -W-h-o- -K-i-l-l- -C-y-c-l-i-s-t-s-
-o-r- -P-e-d-e-s-t-r-i-a-n-s-*---
-[-/-l-e-f-t-]-
--*J Voelcker*-

-*April 2007*-

*-A CRITICAL REVIEW OF THE LEGAL PENALTIES FOR DRIVERS WHO KILL
CYCLISTS OR PEDESTRIANS-*


*-Abstract: -*This paper critically reviews the regulation of motor
vehicles in Britain, and in particular the prosecution of drivers who
kill cyclists and pedestrians. The development of road traffic
regulation is discussed with particular emphasis on the social and
legal processes at work behind the evolution of the law, and anomalies
in the current laws are highlighted. The differential rights and
responsibilities of drivers and vulnerable road users are considered
within a conceptual framework which uses class- and power-based
synthesis to explain demographic trends in car use and road casualties.
A critical analysis of a set of court transcripts and newspaper reports
involving road accidents then aims to discover whether those drivers
who are convicted of killing vulnerable road users are less harshly
punished than other criminals who cause death without intent. The
thesis concludes by discovering that drivers are less harshly punished,
and that this is due to a bias in the criminal justice system because of
a lack of representation of vulnerable road users amongst judiciary,
policy makers and legal officials. Unequal class and power relations
allow the interests of drivers to be over-represented whilst the rights
of pedestrians and cyclists are eroded.


--
rooman

[rooman[_140_]]

lelak Wrote:
> > we all seem to feel that a momentary lapse is ok but a purposeful
> > rage infraction is not... is there really a difference?,
>
> I thought that "mens rea" was a fairly critical part of the legal
> process:
>
> http://en.wikipedia.org/wiki/Mens_rea
>
>
>
>
> Lela
so is "duty of care"


--
rooman

[Peter]

Donga > wrote:

> > Maybe worth forwarding on this to the GOM 'collective' via the BikeQLD
> > list (coo-ee donga!)http://www.bikeqld.org.au/
> >
> > Also please consider writing to the QLD
> > Attorney-General.http://www.justice.qld.gov.au/contact.htm
> >
> > --
> > cfsmtb
>
> I dunno, I reckon you are all being a little harsh. As far as I can
> see, she didn't run a red light, didn't deliberately swerve, didn't
> drive off, didn't booze and pretend to be sober, didn't chat on the
> mobile while doing her lippy, didn't do anything particularly
> objectionable except a smidsy with a tragic end. Six months suspended
> is regarded as a pretty serious consequence, particularly for a first-
> time offender. I'm thinking "there but for the grace of Dog go I".
>
> Donga

As I said at the beginning of the thread "I have a feeling that part of
the reason such light penalties are handed
down for cyclist deaths and injuries is that lots of drivers, including
judges, fail to look out for cyclists. They think that kiliing a cyclist
is bad luck more than a lack of skill and ability."

Maybe the lady should at least be made to go through some sort of driver
training and testing program before she's allowed to drive again.

I was almost doored by a driver a couple of years back. She saw me
swerving at the last minute and pulled the door back. Then she opened it
again, catching another cyclist across the bridge of the nose. Then,
while she's shaking and being consolled by friends she says that this is
the third time she has caught a cyclist with her car door. She was
amazed that I wanted to call the police and have her charged. That had
never happened before.

Peter

[Peter]

rooman > wrote:

> just out, a paper from the UK exactly on point
> [-l-e-f-t-]---*-A- -C-r-i-t-i-c-a-l- -R-e-v-i-e-w- -o-f- -t-h-e-
> -L-e-g-a-l- -P-e-n-a-l-t-i-e-s- -f-o-r-*---
> -[-/-l-e-f-t-]-
> -[-l-e-f-t-]---*-D-r-i-v-e-r-s- -W-h-o- -K-i-l-l- -C-y-c-l-i-s-t-s-
> -o-r- -P-e-d-e-s-t-r-i-a-n-s-*---
> -[-/-l-e-f-t-]-
> --*J Voelcker*-
>
> -*April 2007*-
>
> *-A CRITICAL REVIEW OF THE LEGAL PENALTIES FOR DRIVERS WHO KILL
> CYCLISTS OR PEDESTRIANS-*
>
>
> *-Abstract: -*This paper critically reviews the regulation of motor
> vehicles in Britain, and in particular the prosecution of drivers who
> kill cyclists and pedestrians. The development of road traffic
> regulation is discussed with particular emphasis on the social and
> legal processes at work behind the evolution of the law, and anomalies
> in the current laws are highlighted. The differential rights and
> responsibilities of drivers and vulnerable road users are considered
> within a conceptual framework which uses class- and power-based
> synthesis to explain demographic trends in car use and road casualties.
> A critical analysis of a set of court transcripts and newspaper reports
> involving road accidents then aims to discover whether those drivers
> who are convicted of killing vulnerable road users are less harshly
> punished than other criminals who cause death without intent. The
> thesis concludes by discovering that drivers are less harshly punished,
> and that this is due to a bias in the criminal justice system because of
> a lack of representation of vulnerable road users amongst judiciary,
> policy makers and legal officials. Unequal class and power relations
> allow the interests of drivers to be over-represented whilst the rights
> of pedestrians and cyclists are eroded.

Do you know the name of the journal this is published in?

Peter

[Zebee Johnstone]

In aus.bicycle on Wed, 9 May 2007 21:48:04 +1000
rooman > wrote:
>
> using a vehicle on the road is a priviledge not a right, but here so
> far, we all seem to feel that a momentary lapse is ok but a purposeful
> rage infraction is not... is there really a difference?, the

Absolutely.

Intent is vital, because we all screw up. It's part of being human.

There is a massive difference between intent to kill, doing something
with a high chance of killing, and making a small mistake that kills
because of circumstances.


> it is a serious question we really have to ask... and until it is
> properly answered and addressed things probably wont change on the
> roads...

Harsh sentences on their own simply don't change a thing, the famous
example being the pickpockets working the crowd at the hanging of a
pickpocket.

The only way to stop road deaths is to ban wheeled traffic. People
died under horses and carts (wasn't that how Spinoza died?), people
have been killed by cyclists.

As OH&S has found, the only way to deal with the problem is to make
the consequence of a small mistake as minimal as possible. Hence
interlocks, guards, barriers. As soon as you get into a situation
where you can't do that easily, such as road workers or construction
sites you get deaths.



> that is exactly right , a fair observation in a fair society, but what
> does that do for us going forward, will road deaths stop being
> acceptable society prices for our wish to let each other off the
> hook....and so being Devil's Advocate here....I put this
> proposition...." -that is why we continue to have incidents which cause
> death on our roads...we are NOT careful enough because we know that
> society will let us off-"
>
> true or not...

Not true.

Because you are assuming that people are making that tradeoff in their
heads. They aren't.

Consider the red light running cyclist. Are they thinking "running
the red is illegal, but I will get off with a fine"? Bull****, they
are thinking "OK, stopping means I will lose time and momentum, check
for a car, it's clear, right, go!" The penalty they fear is the clear
and present danger of 2 ton of metal. A possible fine in the future
is not in the calculation unless there's a cop right there.

In Sydney, watch the speeds near a fixed camera. The penalty for
speeding is the same no matter where you are. But the speeds on a
clear road will be 70 until the camera is in sight, then 55-60, then
70 when the camera is out of range.

THe red light runner and the speeders are both deliberately committing
an act. They aren't making a mistake or having a lapse of
concentration, they are deliberately committing an illegal act that
has consequences. They are doing it because they know they won't be
caught. You could make the sentence for speeding past a fixed camera
12 months in jail, you'd not change the speed of a driver who was not
near one.

GO through your day carefully, every day for a month. Name for us
every time you have made a minor mistake. The most minor omission or
commission. From stopping at the door because you didn't put your keys
in your pocket and you have to search for them to not signalling a lane
change or turn because you knew there was no one there. From not head
checking as a pedestrian even if you don't bump into anyone to leaving
cleaning the chain till tomorrow when you know it needs it.

Can you really honestly live a month or a year and have no minor
carelessness?

Now for each one, imagine the worst possible result. You don't headcheck
as a ped, you jostle someone and they fall and hit their head on the kerb.
You don't clean your chain, it fails and you end up spearing into a ped
who dies. You don't signal, but there's a cyclist there who doesn't
expect your turn, they crash and die.

Dead is dead, intention is irrelevant, there is no such thing as
contributory negligence through failure to anticipate. Report to life
in jail Citizen.

Zebee

[Donga]

On May 9, 11:40 pm, (Peter) wrote:
> Donga > wrote:
> > > Maybe worth forwarding on this to the GOM 'collective' via the BikeQLD
> > > list (coo-ee donga!)http://www.bikeqld.org.au/
>
> > > Also please consider writing to the QLD
> > > Attorney-General.http://www.justice.qld.gov.au/contact.htm
>
> > > --
> > > cfsmtb
>
> > I dunno, I reckon you are all being a little harsh. As far as I can
> > see, she didn't run a red light, didn't deliberately swerve, didn't
> > drive off, didn't booze and pretend to be sober, didn't chat on the
> > mobile while doing her lippy, didn't do anything particularly
> > objectionable except a smidsy with a tragic end. Six months suspended
> > is regarded as a pretty serious consequence, particularly for a first-
> > time offender. I'm thinking "there but for the grace of Dog go I".
>
> > Donga
>
> As I said at the beginning of the thread "I have a feeling that part of
> the reason such light penalties are handed
> down for cyclist deaths and injuries is that lots of drivers, including
> judges, fail to look out for cyclists. They think that kiliing a cyclist
> is bad luck more than a lack of skill and ability."
>
> Maybe the lady should at least be made to go through some sort of driver
> training and testing program before she's allowed to drive again.
>
> I was almost doored by a driver a couple of years back. She saw me
> swerving at the last minute and pulled the door back. Then she opened it
> again, catching another cyclist across the bridge of the nose. Then,
> while she's shaking and being consolled by friends she says that this is
> the third time she has caught a cyclist with her car door. She was
> amazed that I wanted to call the police and have her charged. That had
> never happened before.
>
> Peter- Hide quoted text -
>
> - Show quoted text -

No argument. This lady got a suspended jail sentence. That's pretty
tough for someone who did what 10,000 Australians a day do, i.e. act
thoughtlessly on the road. Heck, if you put everyone in jail who
causes injury (or death) by carelessness, there'd be no room for the
malicious.

Donga

[rooman[_141_]]

Zeebee...

According to Voeckler , his research shows the outcome from court
process , (adjudging like with like in causality of death) , is that
Vulnerable Road Users are treated differently and their deaths result
in lesser outcomes for the defendants. That is the concept that is of
concern here (and elsewhere). Not one of intent of defendant , but
outcome of penalty due to class of victim.

Look at the control in this research,
http://tinyurl.com/2574aw
purely OH&S scenarios and you will see a clear differential between the
control and VRUs. VRU outcomes are less. Why? he goes on to say why...

(summary doc is here)
http://tinyurl.com/yv4n9o

hence the title of this thread and others like it...VRU dies, driver
gets off with suspended sentence/small fine/no penalty...the perception
is real.

As for addressing this , well he has thoughts but he isnt sure on how
to do it, saying there is no magic bullet.

We cannot ignore this state of court outcomes, and this forum and
others all add to deliberations and raising awareness. Voeckler has a
section on policy review and suggestions for the UK. which is UK
specific but it may have application here due to road system and design
and road use pattern similarites.

Is society mature enough to let this evolve or is specific change
required in terms of public and social policy?


Voeckler says -"What is required is to engender a sense of
responsibility and a duty of care, not to remove it."...-it's getting
there that is our difficulty.


--
rooman

[parawolf[_30_]]

Now i'm curious about something. Imagine if workcover did do an analysis
of those that 'work on the road' (limiting discussion at the moment to
cars) like taxis, couriers and others.

2 deaths a day, and 46 injuries a day.

I wonder what the WorkCover outcome would be....


--
parawolf

[EuanB[_60_]]

rooman Wrote:
> is it not that society is accepting of such situations of leniency, and
> thus allows "softer" sentencing, & we who ride or closely affected by
> each tragedy thus are too sensitive to that at times?
>
> on vehicluar responsibility, I am inclined to think as UK Lord Chief
> Justice Lane stated back in 1984, "-that any driver who fails to
> realise that what he is doing at the wheel is creating an obvious risk,
> is deserving of severe punishment"-
>
> using a vehicle on the road is a priviledge not a right, but here so
> far, we all seem to feel that a momentary lapse is ok but a purposeful
> rage infraction is not... is there really a difference?, the
> consequences are the same, the weapon is the same, the outcome is the
> same and the obligation on the user of that weapon hasnt been
> changed...is it just re-interpreted for the sake of the perpetrator's
> ongoing life or is it really for the sake of society as was said above
> "there but for the grace of..., go I.... etc"...IMO it goes something along these lines. As a society, private motorised
transport is really convenient. Never in history has a private
individual been afforded such cheap and convenient mobility.

The trade-off is that it's just a little bit dangerous. For most people
the most dangerous thing they do every day is drive a car. Name me one
other product that you can buy in common every day use you can buy
which causes as much death as cars do. I can't think of one, but hey
I'm not brain of Britain either.

We, and by we I mean society, don't like people in cars killing other
people. An easy way to fix it would be to ban cars, but we like that
even less. We all `need' private motor transport even though we accept
that we're all human and prone to human error.

This spills over in to sentencing. Mistakes happen, everyone makes
mistakes. How many of us can honestly say, hand on heart, that they've
checked their blind spot every single time they've moved laterally? I
can't.

We accept death on the roads because society without private motor
transport is something we don't want to contemplate. It's a backwards
step in the eyes of most people.

My personal view is somewhat different to that, but that's not what's
being discussed here.


--
EuanB

[EuanB[_61_]]

rooman Wrote:
> According to Voeckler , his research shows the outcome from court
> process , (adjudging like with like in causality of death) , is that
> Vulnerable Road Users are treated differently and their deaths result
> in lesser outcomes for the defendants. That is the concept that is of
> concern here (and elsewhere). Not one of intent of defendant , but
> outcome of penalty due to class of victim.
>
> Look at the control in this research,
> http://tinyurl.com/2574aw
> purely OH&S scenarios and you will see a clear differential between the
> control and VRUs. VRU outcomes are less. Why? he goes on to say why...
>
> (summary doc is here)
> http://tinyurl.com/yv4n9o
>
> hence the title of this thread and others like it...VRU dies, driver
> gets off with suspended sentence/small fine/no penalty...the perception
> is real.
>
> As for addressing this , well he has thoughts but he isnt sure on how
> to do it, saying there is no magic bullet.
>
> We cannot ignore this state of court outcomes, and this forum and
> others all add to deliberations and raising awareness. Voeckler has a
> section on policy review and suggestions for the UK. which is UK
> specific but it may have application here due to road system and design
> and road use pattern similarites.
>
> Is society mature enough to let this evolve or is specific change
> required in terms of public and social policy?
>
>
> Voeckler says -"What is required is to engender a sense of
> responsibility and a duty of care, not to remove it."...-it's getting
> there that is our difficulty.

Do you have any information on what the situation is in Holland and
Copenhagen with respect to the treatment of VRU fatalities? It's my
understanding that in Holland at least road safety for all road users
is markedly better than it is here (I stand to be corrected on that).


--
EuanB

[Zebee Johnstone]

In aus.bicycle on Thu, 10 May 2007 11:08:32 +1000
EuanB > wrote:
>
> We accept death on the roads because society without private motor
> transport is something we don't want to contemplate. It's a backwards
> step in the eyes of most people.
>

My understanding is that rooman's point is that VRUs are treated as
lesser, and is this what we as a society want?

I think the problem is really rhe same - that mistakes happen, VRUs
get hurt *because* they are vulnerable, and this is considered the way
things are. They do nothing wrong but if their deaths were treated as
more important than currently then this would have grave effects on
the current system.

I think it is possible to change this, but it would need quite
widespread change at many levels.

The Dutch experiments with removing road signs and barriers for
example. Engage people more, they will take more care. You won't
stop VRU injuries or deaths, but you might reduce them.

But that means slowing things down, more congestion, more upset,
before people get used to it. Might also mean more time to move
goods. IN a big country with a lot of road miles travelled, is this
going to be Too Hard?

Zebee

[Zebee Johnstone]

In aus.bicycle on Thu, 10 May 2007 10:28:09 +1000
rooman > wrote:
>
> Zeebee...
>
> According to Voeckler , his research shows the outcome from court
> process , (adjudging like with like in causality of death) , is that
> Vulnerable Road Users are treated differently and their deaths result
> in lesser outcomes for the defendants. That is the concept that is of
> concern here (and elsewhere). Not one of intent of defendant , but
> outcome of penalty due to class of victim.
>

ONe thing I didn't see in that, perhaps I missed it, is the comparing
of like traffic accidents to like. (And the emotive language makes
this a difficult read, as though the author is trying to baffle me
with bull****. I found it hard to concentrate on the argument.)

I think one of the reasons there might be lesser sentences for
crashes involving vulnerable road users is that they are, well,
vulnerable.

If I, in a car, am slowing down to turn left, and I clout another car
as I turn, the chances of injury are low. If I clout a cyclist, the
chances are high. The fault on my part - not looking - is the same,
the consequences are quite different.

The core of the problem is this - should the same action be treated
differently because of something outside my control, that the object I
didn't see (because I didn't look, so couldn't tell) was vulnerable?
The action and the negligences was the same in each case, the
consequences were different.

Trouble is, we won't see the car case in court, we won't see the
driver prosecuted because there was no injury. So we can't compare
sentences of like action with like, only like outcome with like.

It's a difficult problem. For example, big heavy gravel truck does the
same thing, but the car clouted is doing 100 in a 50 zone. The car
occupants are horribly damaged or killed. THey clearly contributed,
but of course that analogy leads to the conclusion that the vulnerable
road user also contributed by the fact of being vulnerable.

And in a way they did. They were in a situation where a driver's minor
carelessness can lead to them being horribly hurt. Is this the fault
of the driver?

Do we punish outcomes, or actions?

Of course right now, we *are* punishing outcomes, or more accurately
not punishing them.

A fender bender between two cars is "hello nurse" when between a car
and a vulnerable road user. So because the outcome is different so is
the penalty. The victim loses some paint and time to make an insurance
claim, or they lose a leg. The at-fault driver sometimes loses a no-claim
bonus, or they lose time, possibly licence, and probably suffer a deal
of personal anguish.

What would the practical result be if all fenderbenders were
considered major? If they were not treated as they happened, but as
if the other car had been a pedestrian? So if you have one, and it
is reported, then you are up for a "nominal injury", with a scale of
assumed outcome based on actual damage to the other vehicle?

As if you want your fenderbender to be paid for by insurance it has to
be reported, then there would still be some unreported, but fewer.

Really this is just upping the legal consequences with the added value of
increasing the chance that someone gets caught. You could do the same
thing without the theatre of "that's a pretend person" by just upping
the fine and requiring prosecution for any crash. But you would have
to determine fault and a high fine (with or without theatre) raises the
value of fighting the charge. Lots more money and time all round.

And it doesn't change the fundamental difficulty - that people are people
and are careless. It would deal with perceived inequality but would it
reduce the number of damaged cyclists? Would a higher penalty for an
actual crash deter people, would it be on their minds?

I submit not. Because I don't think people are thinking about penalties
when they do things, because only real loonies drive thinking "let's
have a crash". Most people are thinking either "must turn down the next
street" or at best "yeah, close but I can make it, I'm good enough".

So you could have the same outcome of sentence for the same action in a
crash, but I don't think it will do more than make cyclists feel a bit
better, I don't think it will do anything for the crash rate.

I don't think it will get people into the habit of headchecking if they
are not doing it now. Because it is a remote possibility. Whereas if
I, as a motorcyclist, don't do headchecks, then I'm likely to be saying
"hello nurse" as a very immediate probability. The immediate fear trumps
the possible nebulous future every single time.

Equip cyclists with impact-detonated explosives. Lose more cyclists
that way, but the drivers will look!

Zebee

[Donga]

Penalties or explosives are not the only tools available. Read here a
report on Queensland's effective 'Share the Road' campaign from a few
years ago (thanks to BikeQld posters):

http://tinyurl.com/3ay59w

Donga

[Theo Bekkers]

Zebee Johnstone wrote:

> Equip cyclists with impact-detonated explosives. Lose more cyclists
> that way, but the drivers will look!

Don't they already do that in Palestine?

Good points all Zebee.

Theo

[Zebee Johnstone]

In aus.bicycle on 10 May 2007 13:32:07 -0700
Donga > wrote:
> Penalties or explosives are not the only tools available. Read here a
> report on Queensland's effective 'Share the Road' campaign from a few
> years ago (thanks to BikeQld posters):
>
> http://tinyurl.com/3ay59w
>

Similar findings in NSW after a few years of motorcycle awareness
campaigns.

To the point where SMIDSY crashes are now not the main cause of
motorcyclist injuries.

The SMIDSY proportion of the crash count is down by a fair bit, can't
recall the numbers. Isn't fully clear if this is entirely awareness
campaign caused or if the famous scooter boom is helping, can't see
any way to test that. My gut feel is that it is mostly the campaign as
scooters are mostly confined to the inner city in Sydney and the SMIDSY
drop is more widespread.

Zebee

[dewatf]

On Wed, 9 May 2007 13:37:24 +1000, Peter wrote:

> I have a feeling that part of the reason such light penalties are handed
> down for cyclist deaths and injuries is that lots of drivers, including
> judges, fail to look out for cyclists. They think that kiliing a cyclist
> is bad luck more than a lack of skill and ability.

And isn't that the case here. From the report anyway.

Police were unable to charge her with any traffic offense. All they were
able to find was that she failed to look for and spot a cyclist making an
illegal passing manovre past a vehicle turning left. The cyclist ran out
room, rode into a ditch and died. And based solely on her own testimony.

The cause was cyclist, the driver simply failed to save him from his
mistake and was found guilty. With a decent barister she would probably win
on appeal as case law is on her side. Virtually no driver will look behind
them when making a left hand turn from the left lane, they look at where
they are going funnily enough.

dewatf.

[Peter]

dewatf > wrote:

> On Wed, 9 May 2007 13:37:24 +1000, Peter wrote:
>
> > I have a feeling that part of the reason such light penalties are handed
> > down for cyclist deaths and injuries is that lots of drivers, including
> > judges, fail to look out for cyclists. They think that kiliing a cyclist
> > is bad luck more than a lack of skill and ability.
>
> And isn't that the case here. From the report anyway.
>
> Police were unable to charge her with any traffic offense. All they were
> able to find was that she failed to look for and spot a cyclist making an
> illegal passing manovre past a vehicle turning left. The cyclist ran out
> room, rode into a ditch and died. And based solely on her own testimony.

She pleaded guilty to dangerous driving causing death.

>
> The cause was cyclist, the driver simply failed to save him from his
> mistake and was found guilty. With a decent barister she would probably win
> on appeal as case law is on her side. Virtually no driver will look behind
> them when making a left hand turn from the left lane, they look at where
> they are going funnily enough.
>
> dewatf.

I don't see how you can appeal a conviction on a charge you have plead
guilty to. Maybe you can appeal the sentence but not the conviction.

[rooman[_154_]]

dewatf Wrote:
> On Wed, 9 May 2007 13:37:24 +1000, Peter wrote:
>
> > I have a feeling that part of the reason such light penalties are
> handed
> > down for cyclist deaths and injuries is that lots of drivers,
> including
> > judges, fail to look out for cyclists. They think that kiliing a
> cyclist
> > is bad luck more than a lack of skill and ability.
>
> And isn't that the case here. From the report anyway.
>
> Police were unable to charge her with any traffic offense. All they
> were
> able to find was that she failed to look for and spot a cyclist making
> an
> illegal passing manovre past a vehicle turning left. The cyclist ran
> out
> room, rode into a ditch and died. And based solely on her own
> testimony.
>
> *The cause was cyclist,* the driver simply failed to save him from his
> mistake and was found guilty. With a decent barister she would probably
> win
> on appeal as case law is on her side. Virtually no driver will look
> behind
> them when making a left hand turn from the left lane, they look at
> where
> they are going funnily enough.
>
> dewatf.what was his mistake?...his only mistake was being on the road when she
turned, my reading of the report " -Mr Harte apparently tried to avoid
hitting the car but ran into a gutter and was thrown onto a concrete
driveway suffering multiple injuries.- " so, he tried to then avoid her
and ran into the ditch and sustained injuries from which he died. From
the report, she passed this man down the road 200m after letting him
cross her path at the intersection, the driver knew he was around and
ignored him. , so what was the driver doing which enabled him to draw
close to her, assuming as an older type rider who may tootal along at
15klm/h, she is in a car doing 30 to 60pkh, lets say 40kph ...she had
two others in the car...what were they doing which slowed her,
distracted her, took her mind off her responsibility to keep a proper
lookout...and forget he was even around let alone drawing near her.

She admitted to the charge, she has been sentenced which by many
commentators is inadequate, and buy others normal, and by the findings
of Voecklers study somewhat predictable.

In many cases the prosecution dont explore aspects which go to
causality.

Look at MCGees case in SA, where Ian Humphrey died. There were so many
aspects of that sad day that could have been properly explored, but
weren't which resulted in flawed proceedings, minimal outcomes, public
outcry, a Royal Commission, and now proceedings on perverting the cause
of Justice agains the defendant.
The prosecution got a shake up, but nothing really changed.
The SA Govt. made lots of legislative changes but havn't implmented
them. The defendant has used evey legal trick and device known ( learnt
as a Police Prosceutor) and has hoped that his role as a leading legal
figure would get SA society to agree this was just a passing
shortcoming and not really important. The death of Ian Humphrey was
collateral damage from him having a long boozey lunch and its OK not to
accept responsibility for taking a VRUs life as society isnt fussed
about it.
The money spent in properly prosecuting would have been a fraction of
the cost of the Royal Commission and attendant costs. All because of
expedience and soft social policy towards deaths of vulnerable road
users , along with protecting mates and concealing the truth.

Unless we all start thinking a little differently and each contribute
to influence public safety policy over expediency and acceptance of
avoidable deaths this will never change.


--
rooman

[TimC]

On 2007-05-19, dewatf (aka Bruce)
was almost, but not quite, entirely unlike tea:
> Police were unable to charge her with any traffic offense. All they were
> able to find was that she failed to look for and spot a cyclist making an
> illegal passing manovre past a vehicle turning left. The cyclist ran out
> room, rode into a ditch and died. And based solely on her own testimony.
>
> The cause was cyclist, the driver simply failed to save him from his
> mistake and was found guilty. With a decent barister she would probably win
> on appeal as case law is on her side. Virtually no driver will look behind
> them when making a left hand turn from the left lane, they look at where
> they are going funnily enough.

I find it hard to believe that case law will absolve someone from
overtaking and then cutting off.

--
TimC
PUBLIC NOTICE AS REQUIRED BY LAW: Any Use of This Product, in Any Manner
Whatsoever, Will Increase the Amount of Disorder in the Universe. Although No
Liability Is Implied Herein, the Consumer Is Warned That This Process Will
Ultimately Lead to the Heat Death of the Universe.

[Theo Bekkers]

Peter wrote:

> She pleaded guilty to dangerous driving causing death.

> I don't see how you can appeal a conviction on a charge you have plead
> guilty to. Maybe you can appeal the sentence but not the conviction.

If you plead guilty, my understanding is that you have not been convicted.
So maybe you can appeal?

Theo

[SteveA[_30_]]

Theo Bekkers Wrote:
> Peter wrote:
>
> > She pleaded guilty to dangerous driving causing death.
>
> > I don't see how you can appeal a conviction on a charge you have
> plead
> > guilty to. Maybe you can appeal the sentence but not the conviction.
>
> If you plead guilty, my understanding is that you have not been
> convicted.
> So maybe you can appeal?
>
> Theo
Technically, pleading guilty is saying to the court that the
prosecution does not have to prove the elements of the offence. The
court then accepts the guilty plea and convicts the person. In theory
the court does not have to accept the guilty plea. If they do, the
person has been convicted.

On the other hand, a plea of not guilty is not saying that the person
did not commit the offence, it is just saying that they are making the
prosecution prove that they did.

Where you can agree that you have committed an offence, and pay the
appropriate penalty without a conviction being recorded, is for
on-the-spot fine type offences such as parking, speeding, crossing
double lines etc. You agree that you have committed the offence by
paying the ine, but unless the matter goes to court, you do not have a
conviction.

SteveA


--
SteveA

[rooman[_156_]]

Theo Bekkers Wrote:
> Peter wrote:
>
> > She pleaded guilty to dangerous driving causing death.
>
> > I don't see how you can appeal a conviction on a charge you have
> plead
> > guilty to. Maybe you can appeal the sentence but not the conviction.
>
> If you plead guilty, my understanding is that you have not been
> convicted.
> So maybe you can appeal?
>
> TheoThe general position across most jurisdictions in Australia appears to
be if you were convicted based on a guilty plea, you may need to ask
for "*leave*" or permission to appeal your conviction. ( not properly
advised, lacked faculty to make the admisssion, etc... but no appeal as
of right without leave)

In the UK it appears the position is a bit different , there is no
right of appeal to the Crown against conviction following a plea of
guilty. (Stones1 - 2177) (Archbold 2 - 161)

No one is suggesting this lady is undertaking an appeal of her
conviction from what I have read here, just some thoughts that "smart
lawyers may get her off"...unlikley folks, she admitted guilt to the
court (much more weight than a Police confession), a conviction was
entered by the court, then a penalty given by the court. If she
considers that harsh she could appeal sentence.


--
rooman

[Theo Bekkers]

wrote:
> (Peter) wrote:

>> Mrs Beer was jailed for 18 months, suspended immediately for 18
>> months, and she was disqualified from driving for six months.

> It says she indicated for the left turn, that being the case, I'm
> afraid Mr Harte is at least partly to blame. Whether or not he had
> right of way, it's foolhardy to overtake a left turning vehicle on the
> left hand side. If she wasn't indicating that's a different story.

Given someone had just passed you in a car and they suddenly slowed
dramatically, would you not think at least twice before zipping past on
their left side?

Theo

[rooman[_157_]]

Wrote:
> On May 9, 1:37 pm, (Peter) wrote:
> > I have a feeling that part of the reason such light penalties are
> handed
> > down for cyclist deaths and injuries is that lots of drivers,
> including
> > judges, fail to look out for cyclists. They think that kiliing a
> cyclist
> > is bad luck more than a lack of skill and ability.
> >
> > Peter
> >
> > http://tinyurl.com/233tg7
> > Mackay Daily Mercury
> >
> > Court gives suspended sentence over accident
> > 09.05.2007
> >
> > WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off
> his
> > bicycle she phoned triple 0 and nursed the poor man until help
> arrived.
> >
> > Just two days later Paddy Harte, a retired cane farmer, died in
> hospital
> > from his injuries.
> >
> > His death devastated Mr Harte's family because, even though he was a
> > bachelor, he was caring from his 91-year-old mother at the time and
> she
> > died about one year after he did.
> >
> > The fatality also shocked Mrs Beer, 33, who faced the District Court
> in
> > Mackay yesterday and pleaded guilty to dangerous driving causing
> death.
> >
> > "It could have happened to any driver," Mrs Beer said when she left
> the
> > court with a suspended jail sentence.
> >
> > Mrs Beer was driving to visit her mother on November 16, 2005, about
> > 11am. One of her children was in the back seat and a cousin was a
> front
> > seat passenger.
> >
> > She drove up Lawrie Street and, at the intersection with Beach Road,
> she
> > stopped to give way to Mr Harte on his bicycle.
> >
> > She then turned into Beach Road and overtook Mr Harte. About 200m up
> the
> > road she indicated to turn left off the road into a property and as
> she
> > turned her passenger yelled out: "There's a bike."
> >
> > Mr Harte apparently tried to avoid hitting the car but ran into a
> gutter
> > and was thrown onto a concrete driveway suffering multiple injuries.
> >
> > Crown prosecutor Sarah Farnden said Mrs Beer was charged because she
> > failed to keep a proper lookout and admitted to police that she did
> not
> > use her rear-view mirrors to check if the bicycle was behind her.
> >
> > Mrs Beer was jailed for 18 months, suspended immediately for 18
> months,
> > and she was disqualified from driving for six months.
>
> It says she indicated for the left turn, that being the case, I'm
> afraid Mr Harte is at least partly to blame. Whether or not he had
> right of way, it's foolhardy to overtake a left turning vehicle on the
> left hand side. If she wasn't indicating that's a different story.
you are assuming she indicated well before making the turn as is
required by Road Rules, we dont know that she did, did she indicate
then turn immediately? , did she ever indicate? , did she make a self
serving statement? It is all irrelevant.

The lady has admitted guilt, a conviction was entered, why are we
having this examination into what she did or didnt do?...the man is
dead, she has admitted guilt, there is a court stated penalty ....

the question to be asked is only this...is the penalty given by the
court adequate?

maybe, maybe not.

On the facts expressed by the court in considering sentence, and
applying the principles that courts have followed over the years on
road deaths caused to VRUs, maybe it is maybe it isnt.

on the sentiments expressed by some here it may not be... on the
research from the UK, it may be consistent with court outcomes for
deaths of VRUs caused by motorists.

The bottom line is, any death is tragic, most are avoidable, we can
speculate here till the cows come home on who did or didnt contribute
more than the other, or whether it was or wasn't entirely the fault of
an inattentive motorist , an old man on a bicycle or both. The lady did
have the guts in the end to admit it was she who she stuffed up and
accepts the Courts penalty, the old man cannot speak in his defence or
hers.

She did stay around after the incident and helped tend Mr Harte, she
was compassionate, and no doubt sincerely grieving that some one died
possibly because of her. These are important considerations in
sentencing, and so on balance the court has delivered her sentence.

Anyone got any new propositions on what can be proposed to enhance
public safety outcomes for VRUs? . That is more important than retrying
drivers and VRU's in the court of public forums.

Propositions, suggestions to community groups, local and state
governments, legislators, ... it is community attitudes which drive
this, not VicRoads, or VTAC, they just carry it out ( or are supposed
to).

So how about folks contributing to the list of propositions for the
future of riding a bicycle in our living and working environments.


--
rooman

[AndrewJ]

On May 21, 4:22 pm, rooman <rooman.2qx...@no-
mx.forums.cyclingforums.com> wrote:
> Wrote:
>
> > On May 9, 1:37 pm, (Peter) wrote:
> > > I have a feeling that part of the reason such light penalties are
> > handed
> > > down for cyclist deaths and injuries is that lots of drivers,
> > including
> > > judges, fail to look out for cyclists. They think that kiliing a
> > cyclist
> > > is bad luck more than a lack of skill and ability.
>
> > > Peter
>
> > >http://tinyurl.com/233tg7
> > > Mackay Daily Mercury
>
> > > Court gives suspended sentence over accident
> > > 09.05.2007
>
> > > WHEN Sarina mother-of-five Denise Beer knocked a 70-year-old man off
> > his
> > > bicycle she phoned triple 0 and nursed the poor man until help
> > arrived.
>
> > > Just two days later Paddy Harte, a retired cane farmer, died in
> > hospital
> > > from his injuries.
>
> > > His death devastated Mr Harte's family because, even though he was a
> > > bachelor, he was caring from his 91-year-old mother at the time and
> > she
> > > died about one year after he did.
>
> > > The fatality also shocked Mrs Beer, 33, who faced the District Court
> > in
> > > Mackay yesterday and pleaded guilty to dangerous driving causing
> > death.
>
> > > "It could have happened to any driver," Mrs Beer said when she left
> > the
> > > court with a suspended jail sentence.
>
> > > Mrs Beer was driving to visit her mother on November 16, 2005, about
> > > 11am. One of her children was in the back seat and a cousin was a
> > front
> > > seat passenger.
>
> > > She drove up Lawrie Street and, at the intersection with Beach Road,
> > she
> > > stopped to give way to Mr Harte on his bicycle.
>
> > > She then turned into Beach Road and overtook Mr Harte. About 200m up
> > the
> > > road she indicated to turn left off the road into a property and as
> > she
> > > turned her passenger yelled out: "There's a bike."
>
> > > Mr Harte apparently tried to avoid hitting the car but ran into a
> > gutter
> > > and was thrown onto a concrete driveway suffering multiple injuries.
>
> > > Crown prosecutor Sarah Farnden said Mrs Beer was charged because she
> > > failed to keep a proper lookout and admitted to police that she did
> > not
> > > use her rear-view mirrors to check if the bicycle was behind her.
>
> > > Mrs Beer was jailed for 18 months, suspended immediately for 18
> > months,
> > > and she was disqualified from driving for six months.
>
> > It says she indicated for the left turn, that being the case, I'm
> > afraid Mr Harte is at least partly to blame. Whether or not he had
> > right of way, it's foolhardy to overtake a left turning vehicle on the
> > left hand side. If she wasn't indicating that's a different story.
>
> you are assuming she indicated well before making the turn as is
> required by Road Rules, we dont know that she did, did she indicate
> then turn immediately? , did she ever indicate? , did she make a self
> serving statement? It is all irrelevant.
>
> The lady has admitted guilt, a conviction was entered, why are we
> having this examination into what she did or didnt do?...the man is
> dead, she has admitted guilt, there is a court stated penalty ....
>
> the question to be asked is only this...is the penalty given by the
> court adequate?
>
> maybe, maybe not.
>
> On the facts expressed by the court in considering sentence, and
> applying the principles that courts have followed over the years on
> road deaths caused to VRUs, maybe it is maybe it isnt.
>
> on the sentiments expressed by some here it may not be... on the
> research from the UK, it may be consistent with court outcomes for
> deaths of VRUs caused by motorists.
>
> The bottom line is, any death is tragic, most are avoidable, we can
> speculate here till the cows come home on who did or didnt contribute
> more than the other, or whether it was or wasn't entirely the fault of
> an inattentive motorist , an old man on a bicycle or both. The lady did
> have the guts in the end to admit it was she who she stuffed up and
> accepts the Courts penalty, the old man cannot speak in his defence or
> hers.
>
> She did stay around after the incident and helped tend Mr Harte, she
> was compassionate, and no doubt sincerely grieving that some one died
> possibly because of her. These are important considerations in
> sentencing, and so on balance the court has delivered her sentence.
>
> Anyone got any new propositions on what can be proposed to enhance
> public safety outcomes for VRUs? . That is more important than retrying
> drivers and VRU's in the court of public forums.
>
> Propositions, suggestions to community groups, local and state
> governments, legislators, ... it is community attitudes which drive
> this, not VicRoads, or VTAC, they just carry it out ( or are supposed
> to).
>
> So how about folks contributing to the list of propositions for the
> future of riding a bicycle in our living and working environments.
>
> --
> rooman


I think it's largely a population size question. If there are few
bicycles, then they are at risk. The more there are, the less the
risk.

So, let's have a go. Ten reasons to ride a bicycle:

1. It's fun. You are outdoors, not in a cage.
2. It's healthy. Every kilometer, you get fitter.
3. You meet interesting people.
4. Slow travel. It's like slow food. Totally different.
5. No emissions of any note.
6. Minimal energy consumption.
7. Enormously (factor of 100 ?) cheaper than a car.
8. You can go anywhere on the planet on your trusty treadly.
9. No more traffic jams. You go straight through.
10. Radio shock jocks and tabloid journalists will hate you with a
passion.

There, that ought to do it.

[rooman[_160_]]

Hit run killer gets six months Per HuN today on line news.

*http://tinyurl.com/2srlvl*

Off duty Policeman walking his dog left to die, driver gets 6 months
gaol. Family is devastated.

Another socially accepted murder.


--
rooman

[TimC]

On 2007-05-23, rooman (aka Bruce)
was almost, but not quite, entirely unlike tea:
>
> Hit run killer gets six months Per HuN today on line news.
>
> *http://tinyurl.com/2srlvl*
>
> Off duty Policeman walking his dog left to die, driver gets 6 months
> gaol. Family is devastated.

4 hours semi concious, then DVT leading to death. That's got to be a
horrible way to die, and the death would probably have been completely
preventable.

But there were some slightly extenuating circumstances (not really --
a stuck accelarator is very easily fixed without taking your eye off
the road -- hit the kill switch commonly called a key. Brakes are
more powerful than engines, too). In the country, I don't think many
people would bother stopping for what they thought was just a dog.
Wild dogs everywhere here. Should get an award for every fox you hit.

As to the article and the judgement -- of course the policeman was
walking on the road! In the country, we don't have footpaths on the
majority of roads, and it's kinda hard to walk through metre high
grass!

v----- Is that a grocers' apos'trophy?
And as to the Is Your News Limited poll, what a stupid question: "Is
six months' jail enough for being in an accident resulting in the
death of a policeman?". Well, phrased like that, I can't give either
a yes or no. And being a policeman (off duty at the time!) is
completely irrelevant to the crime committed. Accidents happen, and
occasionally result in death. Any old accident may warrant a 10 year
sentence, or no sentence at all. Had they asked "yada yada yada
should *this* accident have lead to a higher prison sentence yada
yada", I would answer "yes". I'm not even going to look at the poll
results given the irrelevance of the question.


Yours, grumpily.

--
TimC
Bad command or file name! Go stand in the corner. -- unknown

[rooman[_161_]]

TimC Wrote:
> On 2007-05-23,
>
> (snip stuff from from me and Tim..)
>
> v----- Is that a grocers' apos'trophy?
> And as to the Is Your News Limited poll, what a stupid question: "Is
> six months' jail enough for being in an accident resulting in the
> death of a policeman?". Well, phrased like that, I can't give either
> a yes or no. And being a policeman (off duty at the time!) is
> completely irrelevant to the crime committed. Accidents happen, and
> occasionally result in death. Any old accident may warrant a 10 year
> sentence, or no sentence at all. Had they asked "yada yada yada
> should *this* accident have lead to a higher prison sentence yada
> yada", I would answer "yes". I'm not even going to look at the poll
> results given the irrelevance of the question.
>
>
> Yours, grumpily.
>
> --
> TimC
> Bad command or file name! Go stand in the corner. -- unknown
stupid poll and typical of how they skew stuff... I refused to vote
too...sheesh the Hun is so predictable...and they have a new Editor!,

Will the HuN continue this stupidity with Rupert's new annointee who
claims he is independant, and not under the pump from the boss ( per
interview on 774) oh and he reckons they will have more "balance" in
future... I'm sure it will be minimal when it comes to vulnerable road
users.


--
rooman

[dewatf]

On Sun, 20 May 2007 10:13:49 +1000, Peter wrote:

> I don't see how you can appeal a conviction on a charge you have plead
> guilty to. Maybe you can appeal the sentence but not the conviction.

She can appeal, though it would require some serious breaches in the
protocol.

It was a hypothetical that if she had not pleaded guilty but spent lots of
money to fight it.

dewatf.

[dewatf]

On Sun, 20 May 2007 11:12:06 +1000, rooman wrote:

>> dewatf.what was his mistake?...his only mistake was being on the road when she
> turned, my reading of the report " -Mr Harte apparently tried to avoid
> hitting the car but ran into a gutter and was thrown onto a concrete
> driveway suffering multiple injuries.- " so, he tried to then avoid her
> and ran into the ditch and sustained injuries from which he died. From
> the report, she passed this man down the road 200m after letting him
> cross her path at the intersection, the driver knew he was around and
> ignored him. , so what was the driver doing which enabled him to draw
> close to her, assuming as an older type rider who may tootal along at
> 15klm/h, she is in a car doing 30 to 60pkh, lets say 40kph ...she had
> two others in the car...what were they doing which slowed her,
> distracted her, took her mind off her responsibility to keep a proper
> lookout...and forget he was even around let alone drawing near her.

She put her blinker on, decelerated to make the left hand turn. Allowing
the cyclist to catch up with her. Why assume she did anything else?
The cyclist was over-taking her from the rear, as was clearly stated.

She wasn't charged with anything except failing to look behind her to the
left. All she did was watch the road where she was turning and not look
behind her to her left. Which just about all drivers do.

Like most drivers, she probably had no idea what speed the cyclist doing
and that he was that close, or that he would be trying to illegally
overtake her on the left instead of the right. The driver obviously didn't
know he was therem until as the witness's statements said, the passenger
screamed out there was a cyclist. And then it was too late.

The onus is on the overtaker to do so safely.

The sentence fits with what the report says, and the context of legal
precedents.

> She admitted to the charge, she has been sentenced which by many
> commentators is inadequate, and buy others normal, and by the findings
> of Voecklers study somewhat predictable.
>
> In many cases the prosecution dont explore aspects which go to
> causality.
>
> Look at MCGees case in SA, where Ian Humphrey died. There were so many
> aspects of that sad day that could have been properly explored, but
> weren't which resulted in flawed proceedings, minimal outcomes, public
> outcry, a Royal Commission, and now proceedings on perverting the cause
> of Justice agains the defendant.
> The prosecution got a shake up, but nothing really changed.
> The SA Govt. made lots of legislative changes but havn't implmented
> them. The defendant has used evey legal trick and device known ( learnt
> as a Police Prosceutor) and has hoped that his role as a leading legal
> figure would get SA society to agree this was just a passing
> shortcoming and not really important. The death of Ian Humphrey was
> collateral damage from him having a long boozey lunch and its OK not to
> accept responsibility for taking a VRUs life as society isnt fussed
> about it.
> The money spent in properly prosecuting would have been a fraction of
> the cost of the Royal Commission and attendant costs. All because of
> expedience and soft social policy towards deaths of vulnerable road
> users , along with protecting mates and concealing the truth.
>
> Unless we all start thinking a little differently and each contribute
> to influence public safety policy over expediency and acceptance of
> avoidable deaths this will never change.

That is a completely different case and has nothing what so ever to do with
this one.

This driver wasn't drunk, this driver gave a truthful account, pleaded
guilty and didn't cause the accident.

dewatf.

[dewatf]

On Sun, 20 May 2007 12:08:45 +1000, TimC wrote:

> I find it hard to believe that case law will absolve someone from
> overtaking and then cutting off.

Except she didn't cut him off. She gave way to him, overtook him safely
then drove 200m down the road and made a left hand turn into a driveway.
Cutting someone off involves overtaking them and making a turn right in
front of them, not 200m down the road.

dewatf.

[dewatf]

On Mon, 21 May 2007 16:22:47 +1000, rooman wrote:

>> It says she indicated for the left turn, that being the case, I'm
>> afraid Mr Harte is at least partly to blame. Whether or not he had
>> right of way, it's foolhardy to overtake a left turning vehicle on the
>> left hand side. If she wasn't indicating that's a different story.
> you are assuming she indicated well before making the turn as is
> required by Road Rules, we dont know that she did, did she indicate
> then turn immediately? , did she ever indicate? , did she make a self
> serving statement? It is all irrelevant.

She gave a detailed statement to police and pleaded guilty.
In that statement she said she failled to look to the left, and as a result
was charged with dangerous driving solely on those grounds.

There is no reason to question her statement. If she wanted to to get off
all she needed to do was say she looked left before making the turn and
plead not guilty.

If she had not indicated, had make an unsafe lane change, or cut the guy
off the police would have charged her on those ground and she would have
got hirer fines and suspensions.

It is not irrelevant because the courts accept ro reject a witnesses
testimony on it's apparent honesty and take remorse into account when
sentencing. It is highly relevant.

dewatf.

[Peter]

dewatf > wrote:

> She wasn't charged with anything except failing to look behind her to the
> left.

She plead guilty to dangerous driving causing death so it would be
odds-on that she was charged with that offence, don't you think?

P

[[email protected]]

> According to Voeckler , his research shows the outcome from court
> process , (adjudging like with like in causality of death) , is that
> Vulnerable Road Users are treated differently and their deaths result
> in lesser outcomes for the defendants. That is the concept that is of
> concern here (and elsewhere). Not one of intent of defendant , but
> outcome of penalty due to class of victim.

Vockler's research is nonsense.

Vockler is posing the hypothesis that "drivers who are convicted of
killing vulnerable road
users are less harshly punished than other criminals who cause death
without intent."

Hardly an object start to the research. And then talk about apples and
oranges, his method:

"Cases were selected by performing a full-text search of national
newspapers using the LexisNexis service (www.lexis-nexis.com/xchange-
international/) with the keywords 'cyclist AND sentence' or
'pedestrian AND sentence' for the RTA group, and 'manslaughter AND
sentence' or 'negligence AND sentence' for the control group."

The includes negligence cases where people intentionally disregarded
safety concerns and manslaughter cases (which include where people
were charged with murder and either plead out r there was only enough
evidence to convict them of manslaughter).

How about comparing the sentences for drivers charged with dangerous
driving where a cyclist or pedestrian died as opposed to a another
vehicle driver dying? How about comparing cases where someone failed
to check their blind spot and a VRU died and one didn't?
Or might that not have achieved the result he wanted?

And he concedes that for his RTA group "the sample size was not large
enough, nor time and resources sufficient, to permit any statistically
significant inferences to be drawn from these data".

The rest is the usual Post-Structuralist bull**** full of emotive
appeals, false comparisons, Foucaultian power relationships, identity
politics and discourse analysis i.e. what you argue when you have no
facts. I would fail a second year on that work.

dewatf.

[dewatf]

On Sun, 27 May 2007 18:30:29 +1000, Peter wrote:

> dewatf > wrote:
>
>> She wasn't charged with anything except failing to look behind her to the
>> left.
>
> She plead guilty to dangerous driving causing death so it would be
> odds-on that she was charged with that offence, don't you think?

Yes which is dangerous driving.

dewatf.