NSWCCA: "One-Punch" Sentence In Thomas Kelly Case Manifestly Inadequate

Monday 7 July 2014 @ 11.17 a.m. | Crime

Last week, the NSW Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120 overturned the sentence previously imposed on Kieran Loveridge, whose “one-punch” assault on Thomas Kelly led to the teenager’s death and sparked a series of legal reforms to assault and alcohol laws.

Bathurst CJ, Johnson and R A Hulme JJ found that the original sentencing judge had made a number of errors in his initial sentencing, finding that the original sentence of 7 years and 2 months (with a non-parole period of 5 years and 2 months) was “both individually and in total, manifestly inadequate”.

Kieran Loveridge plead guilty before the NSW Supreme Court to three counts of assault, one count of assault occasioning actual bodily harm and to one count of manslaughter.  He received a 25% reduction on his sentence  for his guilty plea.  The Director of Public Prosecution challenged the sentence amidst much public discussion about whether it was adequate and the prevalence of “one-punch assaults” in the community.

Criticism by the Court

The NSW Court of Criminal Appeal sharply criticised the original sentence under a number of grounds:

  • Failure to take into account the need for general deterrence
  • Failure to take into account specific deterrence where “the respondent had unresolved alcohol and aggression problems, had a previous conviction for an offence of alcohol-fuelled violence and was subject to conditional liberty at the time of these offences”
  • Failure of the judge to find an intention to injure for each count
  • Incorrectly characterising each discrete episode as a “spontaneous” act.
  • Overall manifest inadequacy given:

“the respondent’s offences were sudden, violent and unprovoked. His victims were chosen at random as they moved peacefully about their business in a public place.”

The court adjusted the sentence to one of imprisonment for 13 years and 8 months with a non-parole period of 10 years and 2 months.  The 25% discount for pleading guilty was retained, but each charge was considered to be more serious.

Public Reaction

The sentence was welcomed by Thomas Kelly’s family, although they expressed their disappointment with the process.  His father, Ralph Kelly, told ABC News:

“There is no celebration in this and you can't value a life in years in jail… But we acknowledge the court system and we respect that finally today they acknowledged Thomas, which is fantastic to see in some respects.  It's a stress that no family should have to take - emotionally, physically, mentally - every kind of stress.  It shouldn't be that the victims have to go through this. It should be the offender should be given a sentence that is decent and let them appeal."

NSW Attorney-General Brad Hazzard told ABC News:

“The NSW Government has since mandated minimum jail sentences for these kinds of deadly, alcohol fuelled assaults and has put in place lockouts to change the culture of drunken, dangerous behaviour in central Sydney.”

Since the Loveridge case, the NSW Government has passed the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, which mandates an eight-year prison term for fatal “one punch assaults” under the influence of drugs or alcohol and removed “voluntary intoxication by drugs or alcohol” as a mitigating factor when determining sentencing.  However, the Crimes Amendment (Intoxication) Bill 2014, which would have imposed minimum sentences for non-fatal one-punch assaults has faltered in Parliament, with the NSW Upper House refusing to pass it without amendments and the NSW Lower House refusing to accept the amendments.

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