One-punch Laws, Mandatory Minimums and ‘Alcohol-Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law

Julia Ann Quilter


Abstract


This article critically examines the New South Wales State Government’s latest policy response to the problem of alcohol-related violence and anxiety about ‘one punch’ killings: the recently enacted Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). Based on an analysis of both the circumstances out of which it emerged, and the terms in which the new offences of assault causing death and assault causing death while intoxicated have been defined, I argue that the Act represents another example of criminal law ‘reform’ that is devoid of principle, produces a lack of coherence in the criminal law and, in its operation, is unlikely to deliver on the promise of effective crime prevention in relation to alcohol-fuelled violence.


Full Text: PDF (507KB)

References


ABC News (2014) Tony Abbott ‘appalled’ by spate of ‘coward punches’, calls for tough penalties’. 9 January. Available at http://www.abc.net.au/news/2014-01-09/tony-abbott-wants-tough-penalties-for-coward-punches/5192170 (accessed 18 March 2014).

Ashworth A (2009) Principles of Criminal Law, 6th edn. London: Oxford University Press.

Bibby P (2013) Four years for a life: Kelly family’s outrage. The Sydney Morning Herald, 8 November. Available at http://www.smh.com.au/nsw/four-years-for-a-life-kelly-familys-outrage-20131108-2x7ca.html (accessed 18 March 2014).

Bottoms A (1995)‘The Philosophy and Politics of Punishment and Sentencing. In Clarkson C and Morgan R (eds), The Politics of Sentencing Reform. Oxford: Clarendon: 40.

Brown D (2013) Criminalisation and Normative Theory. Current Issues in Criminal Justice 25(2): 605-625.

Brown D et al. (2011) Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, 5th end. Sydney: Federation Press.

Chalmers J and Leverick F (2008) Fair labelling in Criminal Law. The Modern Law Review 71(2): 217-246.

Clarkson C and Cunningham S (eds) (2008) Criminal Liability for Non-Aggressive Death. Aldershot: Ashgate.

Coultan M (2013) DPP to appeal sentence given to Kieran Loveridge after death of Thomas Kelly. The Australian, 14 November. Available at http://www.theaustralian.com.au/news/nation/dpp-to-appeal-sentence-given-to-kieran-loveridge-after-death-of-thomas-kelly/story-e6frg6nf-1226760105292 (accessed 18 March 2014).

Davis S and Kemp S (1994) Judged Seriousness of Crime in New Zealand. ANZ Journal of Criminology 27(3): 250-263.

Dingle S (2014) Father of assault victim Daniel Christie calls on young people to curb alcohol related violence. The World Today, ABC News, 17 January. Available at http://www.abc.net.au/worldtoday/content/2013/s3927359.htm (accessed 18 March 2014).

Duff RA (1999) Penal Communities. Punishment and Society 1(1): 27.

Duff RA (2000) Punishment, Communication and Community. New York: Oxford University Press.

Duff RA, Farmer L, Marshall SE, Renzo M and Tadros V(2010) The Boundaries of the Criminal Law. Oxford: Oxford University Press.

Elferink J (2012) Gap in legislation closed by one punch law. Media Release, 28 November. Available at http://newsroom.nt.gov.au/index.cfm?fuseaction=viewRelease&id=10088&d=5 (accessed 18 March 2014).

Fairall P (2012) Homicide: The Laws of Australia. Sydney: Thomson Reuters, Sydney.

Fife-Yeomans J and Wood A (2014) Licence to maim: courts failed to punish one-punch coward Shaun McNeil on previous assaults. The Telegraph, 4 January. Available at http://www.dailytelegraph.com.au/news/nsw/licence-to-maim-courts-failed-to-punish-onepunch-coward-shaun-mcneil-on-previous-assaults/story-fni0cx12-1226794625132 (accessed 18 March 2014).

Garland D (2001) The Culture of Control. Oxford: Oxford University Press.

Hoel A and Gelb K (2008) Sentencing Matters: Mandatory Sentencing, Melbourne: Sentencing Advisory Council.

Hogg R and Brown D (1998) Rethinking Law and Order. Sydney: Pluto Press.

Homel R (1997) Preventing alcohol-related injuries. In O’Malley P and Sutton A (eds) Crime Prevention in Australia: Issues in Policy and Research. Sydney: Federation Press: 163.

Horder J (1994) Rethinking non-fatal offences against the person. Oxford Journal of Legal Studies 14(3): 335-351.

Husak D (2008) Overcriminalization. Oxford: Oxford University Press.

Jones T and Newburn T (2002a) Policy convergence and crime control in the USA and the UK Streams of influence and levels of impact. Criminology and Criminal Justice 2(2): 173-203.

Jones T and Newburn T (2002b) Learning from Uncle Sam? Exploring US influences on British crime control policy, Governance 15(1): 97-119.

Jones T and Newburn T (2005) Comparative criminal justice policy-making in the United States and the United Kingdom: The case of private prisons. British Journal of Criminology 45(1): 58-80

Jones T and Newburn T (2006) Policy Transfer and Criminal Justice. McGraw-Hill International.

Lacey N (2008) The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies. New York: Cambridge University Press.

Lacey N (2009) Historicising criminalization: Conceptual and empirical issues. Modern Law Review 72: 936.

Law Reform Commission of Ireland (2008) Homicide: Murder and Involuntary Manslaughter. Dublin: Law Reform Commission.

Law Reform Commission of Western Australia (2007) Review of the Law of Homicide, Final Report, Project No 97. Perth: Government of Western Australia.

Loughnan A (2009) The Legislation we had to have? The Crimes (Criminal Organisations Control) Act 2009 (NSW). Current Issues in Criminal Justice 20: 457-65.

Loughnan A (2010) Drink spiking and rock throwing: The creation and construction of criminal offences in the current era. Alternative Law Journal 35(1): 18.

Loughnan A (2012) Manifest Madness: Mental Incapacity in Criminal Law. London: Oxford University Press.

MacKinnell I, Poletti P and Holmes M (2010) Measuring offence seriousness. Crime and Justice Bulletin No. 142. Sydney: Bureau of Crime Statistics and Research.

McEwen R (2014) It’s time Barry O’Farrell acted on alcohol-fuelled violence. The Sydney Morning Herald, Comment, 17 January. Available at http://www.smh.com.au/comment/its-time-barry-ofarrell-acted-on-alcoholfuelled-violence-20140116-30xt1.html (accessed 18 March 2014).

Miller P (2014) NSW response to alcohol-related violence is an important first step. The Conversation, 22 January. Available at https://theconversation.com/nsw-response-to-alcohol-related-violence-is-an-important-first-step-22286 (accessed 18 March 2014).

Naggy P (2014) After Pinkie, a new ad campaign can help stop the punches. The Sydney Morning Herald, 15 January. Available at http://www.smh.com.au/comment/after-pinkie-a-new-ad-campaign-can-help-stop-the-punches-20140114-30t10.html (accessed 18 March 2014).

Newburn T (2002) Atlantic crossings ‘policy transfer’ and crime control in the USA and Britain. Punishment & Society 4(2): 165-194.

O’Farrell B (2014a) Lockouts and mandatory minimums to be introduced to tackle drug and alcohol violence. NSW Government Media Release, 21 January. Available at http://www.nsw.gov.au/news/lockouts-and-mandatory-minimums-be-introduced-tackle-violence (accessed 18 March 2014).

O’Farrell B (2014b) (NSW Premier) Second Reading Speech, Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 and the Liquor Amendment Bill 2014, Hansard, Legislative Assembly NSW Parliament, 30 January.

O’Farrell B (2014c) Mandatory Minimum Sentences To be Introduced. NSW Government Media Release, 25 February. Available at http://www.nsw.gov.au/news/mandatory-minimum-sentences-be-introduced (accessed 18 March 2014).

Pratt J (2007) Penal Populism. London: Routledge.

Pratt K and Eriksson A (2013) Contrasts in Punishment: An explanation of Anglophone excess and Nordic Exceptionalism. London: Routledge.

Queensland Law Reform Commission (2008) A Review of the Excuse of Accident and the Defence of Provocation. Report No 64. Brisbane: Government of Queensland.

Quilter J (2013) Responses to the death of Thomas Kelly: Taking populism seriously Current Issues in Criminal Justice 24(3): 439.

Quilter J (2014a) Populism and criminal justice policy: An Australian case study of non-punitive responses to alcohol related violence. Australian and New Zealand Journal of Criminology (in press).

Quilter J (2014b) The Thomas Kelly case: Why a ‘one-punch law’ is not the answer. Criminal Law Journal 38(1): 16-37.

Quilter J and McNamara L (2013) Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct/language under the Summary Offences Act 1988 (NSW) UNSWLJ 36(2): 534-562.

Ralston N (2014) Daniel Christie funeral: father pays tribute to Kings Cross punch victim. The Sydney Morning Herald, 17 January. Available at http://www.smh.com.au/nsw/daniel-christie-funeral-father-pays-tribute-to-kings-cross-punch-victim-20140117-30ys0.html (accessed 18 March 2014).

Roberts J (2008) Sentencing policy and practice: The evolving role of public opinion. In Freiberg A and Gelb K (eds) Penal Populism, Sentencing Councils and Sentencing Policy. Annandale, NSW: Hawkins: 15-30

Roberts JV, Stalans LJ, Indemaur D and Hough M (2003) Penal Populism and Public Opinion – Lessons from Five Countries. Oxford: Oxford University Press.

Robertson J (2014) J G-G to attend funeral of young victim of violence. The Sydney Morning Herald, 16 January. Available at http://www.smh.com.au/nsw/gg-to-attend-funeral-of-young-victim-of-violence-20140115-30vau.html (accessed 18 March 2014).

Roth L (2014) Mandatory sentencing laws. e-brief 1/2014. NSW Parliamentary Research Service. Available at http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Mandatorysentencinglaws/$File/mandatory+sentencing+laws.pdf (accessed 18 March 2014).

Smith G (2013a) AG asks DPP to consider an pppeal. NSW Liberal Party Media Statement, 8 November. Available at https://www.nsw.liberal.org.au/news/state-news/ag-asks-dpp-consider-appeal (accessed 18 March 2014).

Smith G (2013b) Unlawful assault laws proposed. NSW Government Media Release, 12 November. Available at http://www.lawlink.nsw.gov.au/lawlink/Corporate/ll_corporate.nsf/vwFiles/MR13_Unlawful_assault_laws.pdf/$file/MR13_Unlawful_assault_laws.pdf (accessed 18 March 2014).

Smith G (2014) (Attorney General, Minister for Justice) Second Reading debate, Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 and the Liquor Amendment Bill 2014, Hansard, Legislative Assembly NSW Parliament, 30 January.

The Sydney Morning Herald Editorial (2014) Where’s Barry? Silence speaks volumes as alcohol debate rages. The Sydney Morning Herald, 15 January. Available at http://www.smh.com.au/comment/smh-editorial/wheres-barry-silence-speaks-volumes-as-alcohol-debate-rages-20140114-30szb.html (accessed 18 March 2014).

Tomsen S and Crofts T (2012) Social and cultural meanings of legal responses to homicide among men: Masculine honour, sexual advances and accidents. Australian and New Zealand Journal of Criminology 45(3): 423.

Walker M (1978) Measuring the seriousness of crimes. British Journal of Criminology 18(4): 348.

Wood A (2013) Rally in Martin Place protests weak sentences for king-hit violence. The Telegraph, 20 November. Available at http://www.dailytelegraph.com.au/news/nsw/rally-in-martin-place-protests-weak-sentences-for-kinghit-violence/story-fni0cx12-1226763139062 (accessed 18 March 2014).


Refbacks

  • There are currently no refbacks.


Creative Commons Licence
This work is licensed under a Creative Commons Attribution 3.0 Licence.