Mandatory Sentencing

Alcohol and Violence

Open Ended

Why did the NSW government make reforms to the law?

Why Reform the Law?

• In 2013, there was increasing attention paid to the perceived problem of increasing violence caused by alcohol, especially in and around the Sydney CBD.

• Doctors, ambos, cops were bringing attention to the issue and campaigning to limit the consumption of alcohol in the ‘hot spots’.

• A couple of well-publicised ‘one-punch or ‘coward punch’ deaths lent more weight to the calls for law reform (Loveridge, McNeil)

Why Reform the Law?

• MEDIA COMMENTATORS, CELEBRITIES (DANNY GREEN), HEALTH PROFESSIONALS, OPPOSITION POLITICIANS, VICTIMS’ FAMILIES AND VICTIM GROUPS ALL PUSHED FOR CHANGE 

• MEDIA PRESSURE: Doctors used the media to pressure the government to change laws

• “Doctor says wards are awash with the blood of boozers” ABC TV 7:30 interview with St Vincent’s doctor Dr Gordian Fulde 2/1/2014 

Multiple Select

Which of the following were factors leading to law reform in 2014? (more than one correct answer)

• Pressure from health professionals

• Pressure from the media

• Anger about Loveridge's lenient sentence

• Pressure from judges

• Pressure from legal professionals

RELEVANT PIECES OF LEGISLATION (the reforms) - ONE PUNCH LAWS

• The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)   

• The new offence is called “Assault occasioning death”
  

• The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Crimes (Sentencing Procedure) Act 1999 (NSW) : amended to provide for alcohol and drug testing in relation to the offence, as well as the removal of intoxication as a mitigating factor.

• Eight-year minimum sentence for alcohol or drug-fuelled assaults ending in death. 

Multiple Select

What were the aims of the (Assault and Intoxication) Act 2014 (NSW) ? (choose more than 1)

• To deter potential offenders (general deterrence) via harsher penalties

• To deter convicted offenders (specific deterrence) via harsher penalties

• To provide more just punishments via harsher penalties for one-punch killers

• To reduce violence in King's Cross specifically

• To increase judicial discretion

What is Mandatory Sentencing?

Mandatory sentencing is the legislating of a minimum sentence for a particular crime which must be given to someone found guilty

Arguments for Mandatory Sentencing

• to provide harsher penalties for offenders, when penalties are deemed too lenient

• Criticism of Loveridge's initial sentence of 5 years jail was a factor
  

• to prevent and deter crime (in this case, alcohol and drug fuelled violence)

• consistency in sentencing (and therefore justice) is improved 

Open Ended

Do you think mandatory sentencing achieves these aims? Why?

Criticisms of one-punch law (and mandatory sentencing in general)

number 1- Unjust sentences.

• this offence is essentially the same as manslaughter but makes the mens rea of the offence very easy to prove. 

• This is a low standard of proof compared to manslaughter considering the severity of the mandatory sentence AND the potential maximum sentence of 20 years.

Criticism of one-punch law number 1- Unjust sentences.

• The offence is like a strict liability offence. A strict liability offence only requires the guilty act (actus reus) be proven to establish guilt (like a speeding ticket).

• Because it is so easy to prove intent to hit, the offence rests more on establishing that one person hit the other (guilty act), and that the hit led to death (causation).

• Intent to kill or recklessness doesn't have to be proven

So What? (why is it unjust?)

• We usually take into account the intention of the offender when assessing their culpability (level of guilt) (consider Djokovic and the linesperson). 

• In this case, however, we are saying that your intentions don't matter. Reasons don't matter.

• Judges don't care (can't care) about whether you wanted the victim to die, nor why you hit them.
  
  

So What? (why is it unjust?)- Expert opinion

• “Legal eagles punch holes in mandatory sentence plan” SMH, 23/1/2014 Michaela Whitbourn 

• “An 18-year-old with no criminal record is drinking in a bar when a drunken stranger hurls an insult at his girlfriend. After further taunts, the young man hits the stranger, who trips, hits his head on the edge of the bar and dies. But a bikie gang member with a history of violence who lies in wait for a rival gang member and punches him in the face, causing him to crack his head on the pavement and die, would not receive a minimum eight-year sentence unless he was affected by alcohol or drugs at the time.”

Open Ended

Do you think justice requires that we take intentions into account? Why?

Open Ended

Can you give an example of a crime requiring a mandatory sentence?

Assault Causing Death

The Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) was passed on30/01/2014. It amends the Crimes Act1900 (NSW) to include a new offence.

Open Ended

What is the mandatory minimum penalty for the new offence?

The Mandatory Sentence

A person who is over 18, intoxicated, and is found guilty of the offence is subject to a maximum sentence of 25 years, and a minimum mandatory sentence of 8 years imprisonment.