Push for Reform of Sentencing with Respect to Death Resulting from Alcohol Related Violence

Thursday 9 January 2014 @ 10.34 a.m. | Crime

The Sydney Morning Herald (SMH) has reported that the family of "king hit victim" Thomas Kelly continue their push to get tougher penalties in NSW for crimes committed while under the influence of drugs or alcohol and that while the NSW Attorney General has shown "tentative" support for their efforts, doubts continue to exist in the legal community as to whether such laws actually result in less crime of this type and produce sentences in the courts that reflect the tougher expectations of the community.

The SMH reports:

"The Attorney-General has shown tentative support for sentencing reforms proposed by the family of king hit victim Thomas Kelly despite a former Director of Public Prosecutions'(DPP) doubts over the suggested changes."

The former DPP quoted by the SMH is Nicholas Cowdery who is said to be of the view that the Kellys' plan which proposes to make:

  • intoxication,
  • a victim's age, and
  • their inability to defend themselves

"mandatory aggravating factors" that must be taken into account by a judge when sentencing an offender was "misguided".

"The problem with general proposals of this sort formulated in response to particular situations is that they need to be thought through carefully,
. . . When you start mucking around with the law you have got to take into account how it would operate in all sorts of situations."

Mr Cowdery then going on to point out that intoxication is used as a defence in some cases. Mr Cowdery is also a member of the council tasked with reviewing the NSW sentencing legislation and has indicated the issues raised by the Kellys would be considered in the review.

The One Punch Solution - Maybe Not

As The Conversation reported Novemebr 2013 the NSW Government is looking at the "One Punch Solution" adopted in Western Australia (in 2008) and in the Northern Territory (in 2012) as a possible way of providing a solution/ deterrent to alcohol related violence.

In both those jurisdictions, legislation followed on the same kind of public reaction that has occurred in NSW over the last several months over the death of Kelly. Simply described, "One-punch laws" make provision in the sentencing laws that where one person assaults another and the other person dies as a result, the person is guilty of an offence of “unlawful assault causing death” which carries liability to imprisonment for up to 10 years in Western Australia and 16 years in the Northern Territory.

As The Conversation explains:

"The offence is regarded as filling a gap – a gap that exists in the parts of Australia where manslaughter is defined in a way that means it will usually not apply in one-punch death situations because of the operation of the defence of 'accident'. In law, an accident is a result that was not intended by the perpetrator and not reasonably foreseeable by an ordinary person".

In essence, one punch laws were necessary in Western Australia and the Northern Territory, not because the charge of manslaughter was seen as too lenient, but because manslaughter was not available. In NSW there is no defence of “accident” and manslaughter laws are defined differently with a lower threshold of proof and in fact "one punch" killings have resulted in convictions for manslaughter.

Conclusion - Avoid Simplistic Views

Spokesman for the Australian Lawyers Alliance Greg Barnes quoted by the SMH says there is no evidence that harsher sentences would deter offenders, pointing that when people commit an offence they're "not thinking rationally" and don't care about sentences.

Former DDP Nicholas Cowdery cautions that the public's  view can be "simplistic" that "research has shown that when real cases are put to ordinary people and they receive all of the information, they usually fix a sentence lower than the judge". 

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