I agree that the penalty should fit the crime and each case has to be assessed on its own merits/faults but in the case of a driver striking a pedestrian the driver is always assumed to be at fault.  I can't keep track of all the times a distracted pedestrian has put him/herself in the path of my vehicle and I had to take action to prevent hitting them.  I have even had a pedestrian walk into the side of my stopped car because they were texting and they got mad at me and demanded that the police be called.  

I think before the rules are changed, pedestrians have to be made aware that they share some of the responsibility.