Reporter: Liam Bartlett
Producer: Howard Sacre
We've tried everything, random breath testing, tougher penalties and endless publicity campaigns, but the message just isn't getting through.
And each year, more and more people are being killed by drink drivers.
So maybe it's time we got really tough on the idiots causing the carnage. .
It's a radical step, but some experts believe drink drivers who kill should be charged with murder..
In America, it's already happening thanks to one very tough prosecutor. .
And, now, many grieving Australian families are asking why it's not happening here..
Full transcript:
INTRODUCTION: LIAM BARTLETT: We've tried everything - random breath testing, tougher penalties and endless publicity campaigns, but the message just isn't getting through, and each year, more and more people are being killed by drink drivers. So maybe it's time we got really tough on the idiots causing the carnage. It's a radical step, but some experts believe drink drivers who kill should be charged with murder. In America, it's already happening thanks to one very tough prosecutor and now, many grieving Australian families are asking why it's not happening here.
LIAM BARTLETT: Her name was Grace and she was 11-months old.
TANIA MOORBY: We're lucky that she never got to be naughty, so to us, she's always perfect. She just never got the chance to be old enough to be naughty.
JAMIE MOORBY: Yeah, if there ever was a baby that came out of a book, then I think it was pretty much her.
LIAM BARTLETT: It's almost a year since little Grace Moorby was killed by a drunk driver in the front yard of her Perth home, but for her parents, Tania and Jamie, it seems like yesterday.
TANIA MOORBY: I can't stop being a mum. I still go, do all my food shopping and look for the things that I used to buy her. I look for her yoghurt, I look for her wipes. I remember very early on in the hospital, I said to Jamie, I'm not a mum any more, and that was, that... Sorry.
LIAM BARTLETT: Tania didn't see or hear anything coming, because it all happened so fast. A young bloke by the name of Benjamin Butler came screaming up this road, trying to overtake two cars at the same time. He clipped the front one, and his V8 Holden Monaro became airborne - through the front yard, picking up Tania and Grace, depositing the car through this brick wall into the neighbour's yard. Grace didn't stand a chance.
TANIA MOORBY: We got the mail out of the letterbox and we were walking up the driveway to go into house. I remember waking up in next door's garden and I remember seeing a red car and I couldn't work out where I was at first and then I thought, "Where's Grace, where's my baby?" And I was just screaming for her. I wanted to know where she was, but I couldn't hear her.
JAMIE MOORBY: Your home is meant to be your safe house, you're meant to be safe there. Now two metres from your front door and this has happened.
LIAM BARTLETT: Benjamin Butler had a blood alcohol content three times the legal limit. He was convicted of dangerous driving causing death, but he's set to spend just 22 months behind bars. It's a fairly typical sentence for this crime in Australia, but if he'd been tried in this court, in New York State, he'd likely be charged with murder.
KATHLEEN RICE: Drinking that much, getting behind the wheel of a car, which is a deadly weapon when it's put into the hands, especially, of a drunk driver - yeah, that's murder.
LIAM BARTLETT: Kathleen Rice is the District Attorney of Nassau County, New York. She's leading the push to prosecute drink drivers for what, she says, they really are - murderers.
KATHLEEN RICE: These are incredibly violent crimes. The way these people are dying is worse than most traditional forms of murder that we are so ready to judge already, now. These are not accidents, they're inevitable and drunk drivers, just like bank robbers and rapists or robbers of any kind, have to be held accountable if we are going to be able to say that we have a lawful society.
LIAM BARTLETT: A murderer is a murderer?
KATHLEEN RICE: Is a murderer.
LIAM BARTLETT: And recently, she proved it. A jury agreed that 7-year-old Katie Flynn was a victim of murder. Katie and her little sister, Gracie, were flower girls at their aunt's wedding. Katie said it was the happiest day of her life. It turned out it was also her last. On their way home in the wedding car, Katie's family were on this freeway on Long Island. A pick-up truck came straight at them, travelling in the wrong direction. They saw it coming but could do nothing. A camera mounted on the dashboard of the limo recorded those final few seconds. The wedding car driver, Stanley Rabinowitz, was killed instantly. Everyone in the Flynn family was seriously hurt, but for Katie, there was no hope. Those moments after the accident will stay forever with her parents Neil and Jennifer.
NEIL FLYNN: I could hear my wife screaming... and she was screaming "Neil, Katie's dead. Katie's dead." And I said - "No, she can't be." At that point I didn't even know what had happened, but I didn't believe it. She was actually holding my daughter's head. She had been decapitated by the seat belt we'd put on her.
JENNIFER FLYNN: I reached for Kate and she was on the floor and all that was left of Kate Marie was her head that I was able to take.
LIAM BARTLETT: The driver, 24-year-old Martin Heidgen, had been at a party and just like the driver who killed baby Grace in Perth, was three times over the limit. He took a wrong turn onto the wrong side of the freeway, ignoring drivers who beeped and flashed their lights at him. The DA said this showed a depraved indifference to human life and charged him with murder.
KATHLEEN RICE: The deaths of Katie Flynn and Stanley Rabinowitz were as inevitable as someone going into a crowded movie theatre with a loaded gun and just firing it at the people in the theatre. No-one would be surprised, under those circumstances, that someone ended up dead. That's exactly what we're talking about here.
LIAM BARTLETT: And the jury agreed - Heidgen was found guilty of murder and sentenced to 18 years in jail. It's become a landmark legal case because normally, drink driving fatalities are seen as accidental, not intentional.
NEIL FLYNN: This guy was raging drunk and he chose to get raging drunk and he had every opportunity to not drive. He was offered a place to stay, he was offered an opportunity to stay over at the party with his friends, but he was known for doing this. He chose to do what he did and he did it.
LIAM BARTLETT: And what do you call that?
NEIL FLYNN: I call that murder, plain and simple, and thankfully, the jury did too.
LIAM BARTLETT: It doesn't work that way in Australia. The judge in a Perth District Court referred to the death of Grace Moorby as an accident, and despite Benjamin Butler's appalling crime, his sentence was discounted because he pleaded guilty.
TANIA MOORBY: I mean, you're basically caught red-handed. Yeah, no, I wouldn't have discounted anything. You've, you've taken a life. You've made a really bad decision and you took a life.
LIAM BARTLETT: Is what he did murder?
TANIA MOORBY: Yeah, I guess it is, he took a life.
CHRISTIAN PORTER: I don't think in any Australian jurisdiction would that equate to murder, and if you tried to run that case here, you would almost invariably fail.
LIAM BARTLETT: Christian Porter is a former State prosecutor and now Western Australia's Attorney General. Why isn't it murder?
CHRISTIAN PORTER: Because we have a hierarchy of offences. Murder requires an intention on the behalf of the perpetrator to bring about a specific result.
LIAM BARTLETT: So it's OK to say - "I was drunk, I killed a baby," "but it wasn't my fault?"
CHRISTIAN PORTER: Well, I'm certainly not saying that at all. What I can say to you, Liam, is that no law in any Australian jurisdiction would allow you, I think, to successfully prosecute these types of scenarios under murder.
LIAM BARTLETT: If it's not seen as murder in Australia, I don't know what to call what happened here in Tasmania last year where an innocent 15-year-old boy was killed instantly. He was an unsuspecting passenger in a speeding car that slammed sideways into this power pole. The driver had been drinking all night, and in the early hours his partner pleaded with him not to get into the car but he took off anyway looking for even more grog. This was the result. The drunken driver and another passenger, a 12-year-old, had to be cut from the wreckage, but it was too late for young Liam Hibble, who took the brunt of the impact and died at the scene.
DAVID HIBBLE: I used to get up every morning and wake him up and that, you know. Some mornings you get up, you go to wake him up, you know, he's not there.
LIAM BARTLETT: For Liam's mum and dad, David and Judy, grief is mixed with deep anger. The 22-year-old driver, Brenton Redshaw, himself a father of two children, had a blood alcohol reading of 0.15 He was doing burn-outs at more than twice the speed limit when he lost control, but he'll spend less than a year behind bars after discounts for his good character and remorse. JUDY HIBBLE: He just didn't care.
DAVID HIBBLE: He gets his lawyer to stand up, "Oh yeah, he's remorseful, he's a good bloke and that," yeah. He's just a murderer, that's all he is.
LIAM BARTLETT: Over in New York, Kathleen Rice just doesn't buy it when drink drivers say "Sorry, I made a terrible mistake."
KATHLEEN RICE: I don't think that you could find a criminal that doesn't say that, regardless of what their crime is. "I've never robbed a bank before, can you just let this one pass? "I've never shot anyone, "can you can you just give me a 'get out of jail free' card?" Why are we talking about this? Why do we even listen when people say it was just a bad mistake?
LIAM BARTLETT: When judges use remorse as a mitigating factor , is that because we can all relate to making such a mistake?
KATHLEEN RICE: We have not as a society appropriately criminalised drunk driving. We just haven't. People see it as an accident, they see it as a mistake and we need that shift to occur where people say "Wait a minute, just because you're in a car, "doesn't make what you do an accident." pause
LIAM BARTLETT: West Australian Attorney-General Christian Porter agrees. He wants to change legislation so drink drivers, like Benjamin Butler, who killed baby Grace, are sentenced to the full extent of the existing law which can be up to 20 years in jail. And how many people have received the maximum?
CHRISTIAN PORTER: Oh, very few that I'm aware of, if any.
LIAM BARTLETT: But the point here is that people like Benjamin Butler choose their own actions and do so without giving a damn about human life.
CHRISTIAN PORTER: Well I, I have no disagreement with you there. If you voluntarily ingest alcohol or drugs and some tragic act follows from that, that that is an aggravating factor and not an excuse.
LIAM BARTLETT: How many more deaths will it take for us all to realise that something has to change? A young boy named Liam who dreamed of being a mechanic and baby Grace, with her entire life ahead of her.
JAMIE MOORBY: It's a stupid reckless act 'cause it's not only yourself you're going to hurt, but our entire family. Think of the people's family, think of your own family.
TANIA MOORBY: I can't describe the devastation that he's caused me. I can't describe how that makes me feel. How I wake up every morning without my little girl. That to me is, that was the one job I was good at, I was good at her, to make her life the best it could be.
