NSW Legislation Package for Alcohol Violence a One Punch Solution?
The NSW Premier, in speaking to his government’s measures to deal with the alcohol related violence on 30 January 2014, stated:
“There is no single or simple cure-all for those problems, but I am confident that these reforms will make a significant difference in tackling drug-and alcohol-fuelled violence on our streets. “
Essentially, the government’s response is made up of two key pieces of legislation intended to give effect to the government's reforms to tackle drug and alcohol related violence, namely the:
- Liquor Amendment Act 2014 (No. 3 of 2014) (the Liquor Amendment) (partially commenced 5 February 2014), and the
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (No. 2 of 2014) (the Crimes Amendment) (partially commenced 31 January 2014).
Following is a review of what that legislation package enacts and some of the criticism of leveled at it.
The Liquor Amendment
Generally the Liquor Amendment enables the government to prescribe high risk precincts in which licensed premises will be subject to regulatory conditions, for example, lockouts and 3.00 am last drinks. This is an approach the Premier says “enables tailored action to be taken immediately within a precinct”. The government has announced the proposed CBD Entertainment Precinct, which will extend from parts of Surry Hills in the south to The Rocks in the north and from Kings Cross in the east to Cockle Bay in the west, as part of this measure.
The Liquor Amendment includes new regulations to impose 1.30 am lockouts and the cessation of liquor service at 3.00 am and allows other conditions to be imposed, for example, prohibiting the use of glass, restrictions on outlaw motorcycle gangs, requiring the use of Responsible Service of Alcohol (RSA) marshals, restrictions on shots and closed-circuit television requirements.
The Liquor Amendment introduces a 1.30 am patron lockout for hotels, nightclubs, general bars and registered clubs in the Sydney CBD requiring certain venues to cease alcohol service at 3.00 am but does not apply the restrictions to small bars, being those, which have a maximum seating capacity of 60 people and which due to their “small patron capacity” are not seen by the government to be as “high risk” as other licensed venues.
Venues currently approved to trade beyond 3.00 am are able to continue to operate by providing other services and facilities past the 3.00 am “cease liquor service time”; namely services like, dining, entertainment, gaming and non-alcoholic drinks service.
The Liquor Amendment extends the existing “liquor licence freeze provisions” applying in Kings Cross and Oxford Street, Darlinghurst, precincts, introduced by amendments to the Liquor Act in December 2012, to enable temporary and long-term banning orders to be issued to troublemakers preventing them from entering licensed premises in the Kings Cross precinct, and applies it across the new Sydney CBD Entertainment Precinct.
The expanded “freeze” commences on commencement of the Liquor Amendment and continues for two years thereafter. Long-term banning orders made by the Independent Liquor and Gaming Authority will be reviewed by the Civil and Administrative Tribunal and persons breaching a temporary banning order will be liable to a maximum court penalty of $5,500, while breaching of a long-term banning order will attract a maximum penalty of $11,000.
The Liquor Amendment also seeks “to ensure regulatory consistency” by application of a prohibition across NSW on the sale of takeaway liquor after 10.00 pm from liquor stores, and hotels and clubs authorised to sell takeaway liquor either from a designated area or across the bar and these provisions also apply to home delivery services of alcohol after 10.00 pm.
The Crimes Amendment
The Crimes Amendment introduces a new offence known as one punch assaults being where a person unlawfully assaults another who dies as a result of the assault and attaches a 20-year maximum sentence to the offence. As a result of the Crimes Amendment, a person will be guilty of the new offence of “assault causing death” under the new section 25A (1) if they unlawfully assault another person by intentionally hitting the other person with any part of their body, or with an object they are holding, causing the death of that person.
A maximum penalty of 20 years imprisonment is applied and a person will be criminally responsible for the offence even if “the person does not intend or foresee the death of the other person, and even if the death was not reasonably foreseeable”. Further, if the offender was intoxicated by alcohol or drugs at the time of the assault, a minimum mandatory sentence of eight years imprisonment and a maximum sentence of 25 years imprisonment will apply. In the legislation the term "drug" includes a drug proscribed under the Drug Misuse and Trafficking Act (NSW) and a poison, restricted substance or drug of addiction in the Poisons and Therapeutic Goods Act (NSW); including steroids as well as psychoactive substances.
The aggravated version of the new offence does not apply to people under the age of 18 years and it is a defence to the aggravated intoxication offence if an accused has a significant cognitive impairment at the time of the offence. The Crime Amendment also sets out ways in which the prosecution can prove intoxication and an accused is presumed to be intoxicated if they have more than 0.15 grams of alcohol in 220 litres of breath or 100 millilitres of blood. Where breath testing is not available, or where drugs are suspected, other evidence may be considered, including the concentration of alcohol or drug in a person's breath or blood at the time of the offence and evidence from closed-circuit television footage, eye witnesses and police observations, all of which are consistent with the current provisions of the Crimes Act 1900 (NSW).
Enforcement measures enable police to conduct drug and alcohol testing where they suspect an offender has committed an alcohol or drug fuelled violent assault (see new sections 138F and 138G).
The Crime Amendment also removes “voluntary intoxication by drugs or alcohol” as a mitigating factor when courts determine sentences in future. A change said by the Premier to reflect “the view that the choice to become intoxicated should not lead to reduced culpability. Self-induced intoxication is no excuse for violence”.
Finally, the Crime Amendment increases the fine amounts for criminal infringement notices routinely used by police in dealing with antisocial behaviour as follows:
- Offensive language increases from $150 to $500,
- Offensive behaviour fines increase from $200 to $500,
- Continuation of intoxicated and disorderly behaviour following a move-on direction increased from $200 to $1,100,
- Maximum penalty for offence of continued intoxicated and disorderly behaviour increased from $660 to $1,650.
The Greens, David Shoebridge has criticised the above measures as having the potential to overwhelm the NSW prison system:
“The O’Farrell government’s proposed mandatory sentencing laws for alcohol related violence will see the NSW prison system literally overwhelmed, facing a 50% increase in the prisoner numbers and costing the NSW State government billions of dollars to implement. This is all for a policy that has been a proven failure in deterring crime in every jurisdiction where it has been tried.”
Mr Shoebridge goes on to say that the policy goes far beyond the one punch laws and actually affects many other minor offences:
“Thousands of cases of more minor offences such as assault occasioning actual bodily harm and assault police will also be subject to arbitrary and unfair mandatory minimum sentences. . . . Mandatory sentences fall hardest on those who come into contact with police the most – indigenous Australians, the homeless and other disadvantaged groups”.
NSW Independent Alex Greenwich says on his website:
"Mandatory minimum sentences defy justice, fairness and logic. . . .They do nothing to stop violent alcohol related attacks, with ample evidence showing offenders do not consider the consequences of their actions when they are intoxicated”.
He also responds to government claims that mandatory sentences are necessary because current sentencing fails to reflect community values, by pointing out that the government “has not provided a broad range of examples to prove its case, nor has it referred the matter to the NSW Sentencing Council” .
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- Liquor Amendment Act 2014 (No. 3 of 2014), Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (No. 2 of 2014) and supporting materials as reported in the TimeBase LawOne Service.
- Mandatory Sentencing (David Shobridge Greens State MP)
- Crimes and Other Legislation Amendment (Assault and Intoxication) Bill (Alex Greenwich Independent State MP)