Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014

Liberty Victoria is strongly opposed to the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014. The Bill seeks to enact mandatory sentencing (a 10 year mandatory minimum non-parole period for manslaughter in circumstances of a "coward’s punch/ strike" and/or in circumstances of "gross violence").

Liberty is opposed to the Bill is for substantially the same reasons as noted in our comments on the Sentencing Amendment (Emergency Workers) Bill 2014, which also introduced mandatory sentencing:

As with the Emergency Workers Bill, the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014 will:

  1. Prevent judicial officers from exercising mercy in cases that do not fit within one of the prescribed "special reasons" (for example, where an offender without a prior criminal history may have acted out of character and/or when drug affected, and is otherwise a law-abiding citizen in gainful employment and a provider for his or her family);
  2. Provide a disincentive for offenders to plead guilty (and also provide an incentive for offenders to appeal), which will only put further pressure on Courts which are stretched to breaking point, and see witnesses and families of the deceased having to be drawn into protracted court proceedings; and
  3. Change the key decision making from the judiciary to the executive, whereby the decision will rest with prosecutors as to whether to proceed with charges that have mandatory sentences or proceed with (and/or resolve to) some lesser alternative charge that does not result in mandatory gaol (for example not alleging that it was a "coward's punch" or that the offence occurred in circumstances of gross violence). This may well result in inconsistent, personality driven decision-making.

Notably, the Law Council of Australia, the Victorian Bar and the Criminal Bar Association are strongly opposed to the reforms. The Victorian Bar made a statement here:

The Criminal Bar Association (which represents Prosecutors as well as Defence Practitioners) also opposed the Bill here:

The critique by former NSW DPP Nicholas Cowdery AM QC, where he lists no fewer than 21 problems created by mandatory sentencing, is poignant in light of the experience in New South Wales:

Liberty Victoria notes that people from across the political spectrum have strongly opposed the reforms. Chris Berg from the IPA wrote a piece condemning the Bill here:

The Bill forms part of a suite of legislation that seeks to reduce judicial discretion in sentencing including the Crimes Amendment (Gross Violence Offences) Act 2013, the Sentencing Amendment (Baseline Sentences) Bill 2014, and the Sentencing Amendment (Emergency Workers) Bill 2014.

It is important to acknowledge that this legislation all combines to whittle away the power of the Courts in a manner never before seen in Victoria. Of course while the Courts honour the convention not to criticise Parliament, it must be recognised that this represents a significant shift in power and an attack on judicial discretion.

Also, the Bill is ambiguous. Perhaps the worst example is Cl 6(5) in relation to whether a strike is "unexpected" (and therefore a Coward's punch attracting the mandatory minimum 10 year non-parole period), where it provides:

"The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender”.

Simply put, the meaning of all this will need to be tested in the Superior Courts at great public expense. Such ambiguity provides a further disincentive for accused persons to plead guilty.

The Bill should not be rushed through Parliament as part of the pre-election law and order auction. It should be properly considered and debated given it is (yet another) shift in power between the branches of Government.

Please contact Liberty Victoria President Jane Dixon QC or Liberty Victoria Vice President Michael Stanton if we can provide any further information or assistance. This is a public submission and is not confidential.

Liberty Victoria

16 September 2014

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