September 11, 2014  |  Sentencing Amendment

Sentencing Amendment (Coward’s Punch Manslaughter & Other Matters)

Mr CARROLL (Niddrie) — I rise to speak on the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014. As outlined by the shadow Attorney‑General, we will not oppose the bill.

The bill amends the Crimes Act 1958 to specify that a single punch or strike is a dangerous act for the purpose of manslaughter by an unlawful and dangerous act. It amends the Sentencing Act 1991 to introduce a statutory minimum sentence of 10 years imprisonment for manslaughter in certain circumstances. The effect of this legislation is to send a message to young people that one punch can kill, and that if you do it, you will end up in jail for 10 years.

The bill inserts new section 4A into the Crimes Act, whereby a single punch or strike delivered to a victim’s head or neck, which by itself causes an injury to the head or neck, is taken to be a dangerous act in the context of manslaughter by an unlawful and dangerous act. It is irrelevant whether the punch or strike is one of a series of attacks. The single punch or strike may cause an injury other than that sustained by the impact of the punch or strike itself, such as an injury resulting from the victim hitting the ground. Often it is the victim’s head hitting the ground that causes their death.

There are often reports of these incidents in the Sunday papers. There is usually alcohol involved and often both the offender and the victim are intoxicated. Often you will read that a single punch was thrown but the victim was unable to put their hands out or whatever and hit their head on the bitumen, the road or the concrete, leading to either their death or being left in a vegetative state, which is what happened to James Macready‑Bryan. That was a high‑profile case that I will come to a bit later.

The legislation introduces a minimum non‑parole period of 10 years which will be applicable in cases of manslaughter in circumstances of gross violence and manslaughter by single punch or strike. The Director of Public Prosecutions must give notice of his intention to seek the imposition of a minimum 10‑year sentence. Manslaughter in circumstances of gross violence occurs where an offender in company or joint criminal enterprise with two or more other persons caused the death of a victim, and the offender was armed with an offensive weapon or firearm, planned to use it and in fact did so causing the victim’s death; the offender planned to and did in fact engage in conduct of which the victim’s death was a reasonably foreseeable result; or the offender caused two or more serious injuries to the victim in a sustained and prolonged attack on the victim.

Manslaughter by single punch or strike occurs where the offender punches or strikes the victim in a manner that constitutes a dangerous act, and the offender intended to hit the victim’s head or neck; the victim was not expecting the punch or strike; and the offender knew that the victim was not expecting, or was probably not expecting, the punch or strike. These circumstances can occur even where there was a confrontation prior to the punch, or where the offender warned the victim that they would punch or strike them. That is the crux of the legislation.

I want to move to some of the criticisms of the legislation. I put on the record that in no way do I support the criticisms, but we need to take note of some of the concerns with the
legislation around judicial discretion. Peter Morrissey, SC, of the Criminal Bar Association — who I just heard being interviewed by Neil Mitchell on the radio while I was in my car — was talking about his reservations regarding the legislation. When someone is about to punch someone, they do not have a light bulb moment and think, ‘Well, I’d better be careful. I could get locked up for 10 years’. Often it is a random and unforeseen attack.

However, Labor has always supported the position that we need to move in this area. Too many lives and families have been destroyed. I mentioned James Macready‑Bryan. Although I have not met James, I had the pleasure of meeting some of his friends a couple of years ago. They are the group of young people who are behind Step Back. Think. That is another important element because although this legislation will impose the mandatory jail terms, we also need to have a cultural shift. It is a bit like wearing seatbelts or putting on sunscreen. Beyond the law and order aspects, we also need to promote the message through education that a single punch can kill.

James Macready‑Bryan was having a night out for his 20th birthday. He was a young man who had his whole life ahead of him. He had graduated from college and had been accepted into arts‑law at Melbourne University and was from a good family. The James Macready‑Bryan who went out to celebrate his birthday never came back. He was the victim of a single punch and he hit his head which resulted in an acquired brain injury.

What is even worse is that a lot of people affected by an acquired brain injury, young men in particular, end up in nursing homes. This is a terrible thing, but in a sense some good has come out of it. There is now an Australian Acquired Brain Injury Outreach Service. That body, together with the JMB Foundation, have been instrumental in providing funding and setting up and helping other young people in a similar situation to get resources and nursing care.

Recently I was going through the law journals that I receive in the mail and one of them did a special report on how different Australian jurisdictions deal with the coward’s one
punch laws and their reform. I will not go through the whole article, but I want to highlight a couple of statements made by some interested stakeholders. The article states:

Monash University senior lecturer of law Dr Stephen Gray asserts ‘the new legislation 

— in Victoria —

seems to have been passed in response to public and political concerns about one‑punch killings rather than a demonstrable gap in the law. It introduces a species of mandatory sentencing. It also substantially reflects what the courts are already doing (that is, imposing substantial custodial sentences for these offences) but removes discretion from the courts’.

I know the Premier, before announcing this legislation, said that he had met with or spoken to the family of David Cassai, the young boy in Rye who lost his life. When you speak to the family you see their anguish over their young son, brother or nephew who, during the best years of his life, has gone out to simply have a night out and his life has ended. The whole family feels as though their lives have ended and they never get over it. This legislation is a step in the right direction. Labor in some ways has also led the way on this issue. We were very much at the forefront. The shadow Attorney‑General has been a strong advocate for tougher sentencing and a stronger law and order approach to these sorts of crimes.

It is interesting that today the member for Caulfield tabled the Law Reform, Drugs and Crime Prevention’s report on the parliamentary inquiry into the supply and use of methamphetamines, particularly ice, in Victoria. We heard firsthand how the drug ice can impact certain individuals who might be prone to violence. We also heard about the violence it causes in the streets of regional towns. This legislation will encapsulate that problem. It is also part of an approach aimed at deterring violence and making sure it never happens.

Going through some of the commentary on this issue — and I think radio broadcaster Neil Mitchell may be on the Step Back. Think advisory committee along with some other prominent Victorians including Steve Bracks — statistics tell us that about 3400 Australians a year are admitted to hospital with brain injuries from assaults. This costs our economy $25 million a year and that is probably only a minimum figure. Think what we could be doing. Introducing this legislation will send a message, but there has to be more than that. It is about education. It is about a cultural campaign to shift people’s attitudes.

Step Back. Think is a wonderful organisation. I met with representatives and heard about their passion which came out of what happened to young James Macready‑Bryan. It is wonderful to see what those young people are doing. Members on both sides of the house supported that foundation with funding. Their campaign of targeted messaging and Facebook campaigns is a step in the right direction.

I wish the bill a speedy passage, as all members do. I think we need to support it, but we also need education, cultural change and making sure that anyone who thinks they can go out on a Saturday night and throw a coward’s punch needs to realise they will be locked up and there will be no second chances. This sort of thing is not appropriate in any community. The toll of victims has been too long and it is good that the government has acted.