DECEMBER 17 2016 – 10:30PM
Kimberley Le Lievre
A 15-year-old Queanbeyan boy being charged under the controversial one-punch legislation for accidentally killing his younger brother is a prime example of how the laws have failed in their intentions, legal experts say.
The Queanbeyan case is a far cry from the violence which led to the introduction of the legislation, University of Wollongong School of Law associate professor Julia Quilter said.
The teen is charged with assault causing death, after he pushed his 10-year-old brother who fell, hit his head and died.
The NSW government introduced the one-punch offences to focus on alcohol-fuelled, random street violence in and around licensed premises two years ago. It was as a result of high profile deaths in Sydney’s Kings Cross.
Former NSW Director of Public Prosecutions and member of the NSW Sentencing Council Nicholas Cowdery said the new laws were “net widening” and could have greater consequences than intended.
“Such as happens when ill-considered legislation is hastily enacted to address a particular situation and someone later discovers another way it can be applied,” he said.
The ACT government has ruled out implementing tougher penalties for one-punch assaults but is discussing further alternative reforms to address alcohol-fuelled violence in the community, in addition to those pledged during the election campaign.
Law Society of NSW president-elect Pauline Wright said the state’s one-punch legislation was unnecessary and should never have been enacted.
“It was already an offence to assault a person causing death,” she said.
“It has always been unlawful whether you’re drunk or not.”
While mandatory sentencing only comes into play when the basic offence is committed with the aggravating factor of alcohol, both sections of the new law are being used in offences unrelated to the reasons the legislation was enacted.
According to an explainer piece on the Rule of Law Institute of NSW website, the offence is “essentially the same as manslaughter but effectively makes the mens rea (intention) of the offence so easy to prove it becomes a triviality”.
A case in Wollongong, also far removed from the random street violence scenarios, ended in a hung jury. The man accused of the one-punch death of his father during a drunken dispute at their home is set to face a retrial in 2017.
Data from the NSW Bureau of Crime Statistics and Research shows no criminal charges have been finalised under the new legislation since it was enacted in 2014.
In a submission to the statutory review, due in the first half of 2017, Dr Quilter said her research of WA laws showed 40 per cent of prosecutions involved men killing their partner or ex-partner in circumstances where there had been a history of violence and abuse. The one-punch legislation resulted in lower sentences than had they been sentenced for manslaughter.
“The unintended consequences of the broad way in which the WA provision has operated with a range of matters being prosecuted which have little to do with the ‘one-punch’ public violence scenario, should sound a note of caution in NSW about the possible unintended operational effects of s 25A,” the submission reads.
ACT Attorney-General Gordon Ramsay said one-punch offences were not committed by people likely to be influenced by tougher penalties.
“These people don’t stop and consider consequences before they throw a punch,” Mr Ramsay said.
“Given that many one-punch offences stem from alcohol related crime, we need to manage the consumption of alcohol in our community in a way which reduces and prevents alcohol-related violence and other harms.”
This includes, he said, efforts to tackle binge drinking, giving venues the statutory right to evict or refuse entry to people who are intoxicated, violent, quarrelsome or disorderly and extra night time police patrols.
Source : Canberra Times