A petition calling for mandatory minimum actual time in custody sentences for motorists convicted of dangerous operation of a motor vehicle causing death, following a fatal crash which killed four-year-old Taylen Swanson, continues to gain attention with more than 3400 signatures.

The petition was started by Taylen’s aunt Jody Swanson following the sentencing of at-fault driver Michelle Lee Newton in Rockhampton District Court on March 19 to 3.5 years prison, wholly suspended and operational for five years for one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, along with one count each of drug driving while being a provisional licence holder and possessing a dangerous drug.

Read more: ‘Outgoing, kind-hearted, honest’ boy’s death haunts mum

Liberal National Party justice spokesman Tim Nicholls, who called for Attorney-General Shannon Fentiman to appeal the “manifestly inadequate” sentence due to the lack of actual time in custody, has spoken with The Morning Bulletin about issues that can come with mandatory sentences.

Michelle Lee Newton, 30, leaving Rockhampton courthouse on March 19, 2021, after being sentenced to 3.5 years prison wholly suspended operational five years and absolutely disqualified from driving for one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, drug driving and possession of marijuana.
Michelle Lee Newton, 30, leaving Rockhampton courthouse on March 19, 2021, after being sentenced to 3.5 years prison wholly suspended operational five years and absolutely disqualified from driving for one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, drug driving and possession of marijuana.

“Mandatory sentences are always an option that’s available for consideration,” he said.

“The question you have to ask is whether they are effective. Are they effective in deterring people in the future from committing the same crime and do they reflect the intent of the person who is convicted of the crime.

“Mandatory sentences as a general rule would apply where, for example, in murder where the intention is to kill someone, the mandatory sentence is life.

“Where there are deliberate and intentional acts that are repeated, there are mandatory sentencing requirements.

“Here, in circumstances where a dangerous operation of a motor vehicle, it’s not the intent of the driver to cause death, damage or harm.

“And so, in those circumstances, it’s often the case that what might end up as being, and seeming, like something that is worthwhile – that is, a mandatory sentence – ends up actually in more people being found guilty and in lesser sentencing being made available because the courts and the judges will say “this is manifestly unfair to lock up someone when they didn’t intend to cause anything. It was a momentary inattention”.

“It’s better, I think, in these circumstances for the judges to apply consistently the sentencing rules and that’s why I think an appeal is worthwhile because if the proper sentencing procedures had been followed, then there would have been an actual custodial sentence.”

Mr Nicholls said one of the outcomes of attaching a mandatory sentence to the dangerous operation of a motor vehicle causing death charge was the possibility it could result in more ‘not guilty’ verdicts in trials and more trials.

Queensland Shadow Attorney-General Tim Nicholls speaks during Question Time at Parliament House in Brisbane. Picture: NCA NewsWire / Dan Peled
Queensland Shadow Attorney-General Tim Nicholls speaks during Question Time at Parliament House in Brisbane. Picture: NCA NewsWire / Dan Peled

“In a lot of the cases in relation to dangerous operation of a motor vehicle, there are often early pleas of guilty which saves the families and everyone from having to go through the horror and the trauma of a lengthy, drawn-out trial process,” he said.

“And so, in the circumstances where there is a mandatory sentence, then a defendant may well be encouraged in those circumstances to fight the case and to not plead guilty at an earlier stage. And that puts families of those who have lost loved ones through a greater and lengthier trauma.

“So the better, I think, in many respects, that’s the danger and that would have to be considered before any mandatory sentence was imposed.

“Because from a defendant’s point of view, what have they got to lose?”

He said what seemed to be the case in many dangerous operation of a motor vehicle cases was a very significant number of people pleading guilty at an early stage, resolving many matters “quite promptly”.

Mr Nicholls’ comments were related to mandatory sentences, not the mandatory minimum the petition is calling for.

Taylen Swanson was four-years-old when he died from head injuries sustained in a car crash caused by Michelle Newton's inattention which resulted her vehicle veering onto the incorrect side of the road and crashing head-on into Taylen's mother's car on September 18, 2016, on the Burnett Highway at Bouldercombe. Taylen's mother Kel Williams supplied photos of her beloved son after Newton was sente
Taylen Swanson was four-years-old when he died from head injuries sustained in a car crash caused by Michelle Newton's inattention which resulted her vehicle veering onto the incorrect side of the road and crashing head-on into Taylen's mother's car on September 18, 2016, on the Burnett Highway at Bouldercombe. Taylen's mother Kel Williams supplied photos of her beloved son after Newton was sente

According to a research paper on mandatory sentences in Australia, mandatory sentencing laws are generally considered to be laws that specify a minimum penalty or a fixed penalty that a judge must impose in relation to a particular offence or type of offender (e.g. a repeat offender).

Minimum penalties are much more common than fixed penalties, which are usually reserved for the offence of murder.

The document outlined the for and against arguments for mandatory sentences, which included ensuring sentences reflecting community standards while maintaining confidence in the system (for), act as a stronger deterrent (for), drafting laws so that they do not result in excessively harsh sentences in some cases (for).

The against arguments included removal of judicial discretion, increasing penalties does not deter people from committing crime, laws impose significant costs on the justice system and likely lead to lower guilty pleas and more trials.

A report by the Queensland Sentencing Advisory Council in December 2018 showed in a 10-year period, of those convicted of dangerous operation of a motor vehicle causing death, 99.4 per cent received a custodial penalty and the average penalty was 5.2 years prison, which indicates setting a mandatory minimum actual time in custody sentence for this charge in Queensland would only increase the penalty for 0.06 per cent of cases.

The sentencing report also showed 88.6 per cent pleaded guilty and there were no repeat offenders.

The Bulletin put to Mr Nicholls the suggestion of a minimum mandatory actual time in custody sentence of two months.

“If you say a mandatory sentence needs to be effective as a deterrent, a mandatory sentence is usually for a longer time because as a deterrence, two months (for example) is not a deterrence and for someone who is driving (lack of intent) and is, for example, on their phone and causes the death of someone and are charged with dangerous operation of a motor vehicle is then subject to all of that process … the length of a mandatory sentence is not going to stop them is it? It’s not going to deter a person from looking at their phone,” he said.

“Any changes to the law for mandatory sentences would have to be looked at very closely to make sure there won’t be any unintended consequences that may result in fewer people being convicted and more trauma, delay and angst for the victims’ loved ones”

CQUniversity criminology senior lecturer Dr Emma L Turley said broadly speaking, the research evidence showed that the threat of a prison sentence did not act as a deterrent to committing crime, and that tougher prison sentences did not actually reduce crimes such as dangerous operation of a motor vehicle or drink driving.

“Although victims of crime and members of the public may welcome harsher sentences for driving offences, especially when a death has occurred as a result of someone’s poor or impaired driving, the perpetrators often are not aware of the penalties before committing the crime meaning crime does not reduce,” she said.

“Other initiatives such as interventions and education programs tend to be more successful in terms of reducing dangerous driving.

“Families of victims killed as a result of dangerous driving understandably want justice for their lost loved one, and this is often expressed in terms of a desire to see perpetrators receive lengthy prison sentences and other harsh sanctions.

“This can be important to help families begin to come to terms with their loss, therefore a balanced approach is needed that takes into consideration the factors that reduce driving offences alongside a victim’s need for justice.”

Other drivers convicted of dangerous operation of a motor vehicle causing death from crashes in Central Queensland have spent time in prison.

Errol John Miller fled a random breath test site on June 10, 2011, and less than five minutes later, a 16-year-old girl was dead.

He had crashed the car on Southern Access Road, near Woorabinda.

Miller was sentenced on August 12, 2014, to seven years‘ jail and disqualified from driving for five years. He had already served 16 months and was eligible for parole on February 11, 2015.

Read more here: Drunk driver jailed over 16-year-old girl's death

Peter Matthias William Hills was 41 when he was sentenced in Rockhampton District Court in November 2017 for the fatal crash that occurred at Bajool about 5.30pm on August 10, 2015, as Hills drove himself and two others home from Port Alma salt flats.

The crash killed Neil Bulley, 47, and seriously injured Dayne Ladbrook, 24 at the time.

Hills was sentenced in 2017 to three years jail, suspended after serving nine months and operational for 3.5 years.

Read more here: Fatigue caused horror crash that killed colleague

A driver who killed a young mother of four after doing speeds of up to 170km/h while highly intoxicated had been busted drink driving five times in 33 years.

Wayne Barnham, 52, was sentenced to nine years‘ prison on August 29, 2018, for the dangerous operation of a motor vehicle causing the death of Tina- Marie Johnson, 27.

Read more here: Young mum killed by speeding serial drink driver



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