The Proper Role of Criminal Law in Road Safety

THIS PAPER SEEKS TO EXAMINE THE MANNER IN WHICH DRINK-DRIVING and certain speeding offences are dealt with in the criminal justice system. This analysis will use Victorian legislation; however many of the features of Victorian legislation have equivalents in other jurisdictions. The focus will be on interference with driving licences. This is one of the most common sanctions employed and one which raises important issues of fairness and efficiency. In an effort to control traffic accidents, a range of policy approaches has been adopted, one of the most important of which has been law enforcement. The term law enforcement involves the creation of driving offences by legislatures, and the enforcement of these laws by police and the courts. The law enforcement approach is essentially based on deterrence theory that persons can be deterred from acting in certain forbidden ways if there is "certainty, severity and celerity of punishment". In the area of drink-driving and speeding offences, policies which combine all three elements have been employed: random breath-testing and speed detection cameras, severe penalties, immediate and/or virtual automatic loss of licence. These policies need to be evaluated at two distinct levels. Firstly, are they effective in producing at the lowest cost the desired outcome of safer driving and less accidents? Secondly, are they defensible in terms of sentencing principles of proportionality and consistency. As far as effectiveness is concerned, the empirical evidence in the area of drink-driving suggests that certainty of punishment is important in deterring potential offenders, but that severity of punishment has very little impact on behaviour if the perceived risk of apprehension and punishment is low (Ross 1984, pp. 102-4). Recent evidence suggests that celerity of punishment, if combined with certainty, may well add to the deterrent impact of the law (Ross 1984, pp. 121-3). Increased severity of punishment also raises questions of sentencing principle. The basic sentencing principle is that of proportionality: the punishment should reflect the gravity of the offender's conduct (see Veen v. R