She had farewelled her son Daniel after sharing a Mother’s Day lunch with their usual hug and exchange of “I love you”. 

Two hours later, the 28-year-old was killed in a head-on car crash when another driver crossed to the wrong side of the road.

Photos of the crash, which Ms Swan has encouraged media to republish, show how utterly devastating that impact was.

All fatal crashes are horrific but the sheer scale of damage to the vehicles was confronting - it is one the worst emergency services have seen.

The crash occurred within kilometres of Ms Swan’s home and despite her best efforts to go to her son, she was unable to do so.

In some small assuagement, Daniel’s friend who was driving close behind was able to be with him and comfort him as he passed.

Losing a child in such sudden, random and violent circumstances would be the hardest thing for a parent to experience.

You would never get over it.

Compounding Ms Swan’s anguish, the person who caused the fatal crash was fined $1630 and given three demerit points.

It would be totally understandable for a parent consumed by grief to be angry and bitter at the expense of reason.

Ms Swan is not those things. She is dogged and articulate. And she is determined to see change to driving laws that closes the gap between legislation and public expectation.

Because this case exemplified the gulf between what punishment the law allows and what consequences the public expects for killing someone on the road.

Magistrates have the unenviable task of working within the law to balance the extreme consequences of the error against the relatively minor error itself.

It is a situation that cannot really be resolved adequately because on one hand someone has been killed but the act that caused the death was not intended or foreseen and therefore ranks low on that person’s culpability.

The Sentencing Advisory Council examined the laws governing deaths and serious injuries caused by motor vehicle accidents.

The 152-page report released in 2017 is thorough, well researched and written and impossible to condense to these few hundred words, but anyone wanting to understand the issue more should read it.

Essentially it says Tasmania’s laws are in line with other states and there is a misunderstanding between the public’s understanding of the laws and principles of sentencing including proportionality.

It is a fair finding. One only has to read comments on such stories to see people calling for mandatory jail, lifetime driving bans and even murder charges.

Such actions would be out of step for all but the most serious cases and there already exists laws to deal with those examples including manslaughter and murder.

But where the report errs is in the treatment of cases, like Daniel’s, where someone dies but the guilty person’s culpability is low in the legal sense.

It is hard to accept that if a person is not charged with negligent driving causing death they can only be dealt with under a traffic offence, which only carries a fine and demerit points. A magistrate cannot even suspend their licence. That is unbelievable.

Is the threshold for proving negligence too high? As Director of Prosecution Daryl Coates explained to Ms Swan in a letter, in the absence of evidence as to why this driver was on the wrong side of the road, the case was circumstantial and proving negligence was practically impossible.

Mr Coates is doing what he is tasked to do by applying the law to the evidence and making a decision on whether a prosecution would likely be successful.

However, most Tasmanians would believe the reasons are inconsequential, it is the fact it occurred that makes it negligent.

There is already a term for this in civil law known as “res ipsa loquitur”, which is Latin for “the thing speaks for itself”.

It infers negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved.

Understanding that criminal law must have a higher burden of proof and that people are innocent until proven guilty, it is still hard to see why this rule cannot apply. 

Yet having just written that, I find it hard to reconcile with the fundamental tenet of the justice system that someone is innocent until proven guilty. It is such a vexing issue.

Change of some sort is needed. The outcome would not be lengthy jail terms (or jail at all, most likely) but it might allow a stronger condemnation than a fine and demerit points in such cases.

Licence loss should be automatic and for a reasonable period, community service should be an option and restorative justice, where the parties talk about the impact of the crash, should be strongly pushed.

That would go some way in closing the gap between public expectation and laws.