Do we need a “one punch” homicide law?

“One punch” or “king hit” homicides have been in the news recently, especially since the killing of young Thomas Kelly in Kings Cross in Sydney a couple of weeks ago. In the Northern Territory dreadful events of that sort have been frequently discussed ever since the killing of off-duty police officer Brett Meredith in a Katherine nightclub a couple of years ago. The issue was back in the news early this week after an 18 year old boy was allegedly “king hit” on Darwin’s nightclub strip and ended up in hospital in a critical condition.

The issue was further highlighted when Country Liberals MLA John Elferink was apparently the victim of an unprovoked street assault (also on the CBD nightclub strip but in daylight and in front of TV cameras no less) while (re) announcing a CLP policy to introduce a “one punch” homicide law (modelled on WA) if elected.

I mentioned all this in an article on the NT election a couple of days ago but it merits a post all by itself. A commenter named Jenny observed:

How is one punch legislation silly? It would act as a strong deterrent.
Brett Meredith died from a punch in Katherine two years ago and if it was in place, perhaps that young man from the weekend would not be in such a bad condition. Perhaps the offender would have thought twice?

The first thing to say about Jenny’s comment (with which I have some sympathy) is that Brett Meredith’s attacker Michael Martyn WAS found guilty of manslaughter, which carries a maximum sentence of life imprisonment. However he was only sentenced to 3 years and 8 months imprisonment with a non parole period of 1 year and 10 months, which looks grossly inadequate to me.

Personally I think persistently inadequate sentences for manslaughter need addressing by legislation. I’ve written here before and advocated a Sentencing Commission including community and police representatives, which would set and maintain a system of “grid sentencing“. Judges would generally be required to sentence in accordance with that grid. They could depart from it in exceptional circumstances but would be required to give detailed reasons for doing so which would be subject to appeal, and could then be dealt with and negated in updates of the grid system where the Sentencing Commission regards the “exceptional circumstances” as inadequate or inappropriate to justify a lighter sentence.

John Elferink’s proposal for a “one punch” homicide law is based on a WA provision inserted into their Criminal Code by the then Labor government in 2008 in the wake of some incidents similar to those that have made news here in the NT. It’s somewhat inaccurate to refer to it as a “one punch” law because it actually applies to any assault causing death.

Former West Australian Labor Attorney-General Jom McGinty, who introduced the “one punch” law there, explained the background in a recent article in the Global Mail:

“We had a massive spate of young men being killed. It would have been almost a dozen in a relatively short span of time, killed in similar circumstances to the young man who was killed in Kings Cross,” McGinty told The Global Mail.

“The problem we confronted was that they couldn’t be charged with murder because there was no evidence that they intended to kill. And they couldn’t be convicted of manslaughter because, they’d say, ‘one punch didn’t kill him, it was hitting his head on the ground that killed him, and I didn’t know that one punch could kill’.”

What that means, in plain English, is that most places don’t punish people for accidents, no matter how tragic.

And some WA juries apparently did not think it was common knowledge that you could kill a person by king-hitting them, so they were acquitting defendants in one-punch cases, deciding that the deaths were accidental. …

“The problem reflected a broader social problem, where young men seemed to think it was ok to go out and be violent with no consequences, at the worst being charged with common assault. And at the end there was a dead human being there, and there was an enormous sense of injustice, that the system was incapable of giving any justice to the families of victims who were innocent, and who were dead.”

The general provision concerning unintended consequences of unlawful acts in the WA Code are described by the WA Law Reform Commission in its 2007 report on homicide:

Section 23 of the Code provides that, subject to the express provisions of the Code ‘relating to negligent acts and omissions’, a person is not criminally responsible ‘for an event which occurs by accident’. An event (such as death) occurs by accident if it was not intended or foreseen by the accused and was not reasonably foreseeable by an ordinary person. Therefore, criminal responsibility for this category of manslaughter is ultimately determined objectively because the accused will be held criminally responsible if the prosecution can prove beyond reasonable doubt that death was reasonably foreseeable in all of the circumstances.

WA’s “one punch” law negates any need for the Prosecution to prove either that the accused foresaw any probability of death or even that any reasonable person would do so. The new section is s281:

281. Unlawful assault causing death
(1) If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.
(2) A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

Personally I think you can make a plausible case that someone who king hits another person without warning and kills them should be liable on a “just deserts” basis for serious criminal sanctions irrespective of foresight elements. In other words, I wouldn’t necessarily oppose such a law if confined to a true “one punch” situation. However it is difficult to argue persuasively that creating such an offence will have any significant deterrent effect (as Jenny suggests). Apart from the fact that offenders in such cases are typically affected by drugs or alcohol and unlikely to think once let alone twice, how could an offender be deterred from committing an offence which neither they nor any reasonable person could reasonably have foreseen might cause death? Deterrence, however, is one of several factors to be taken into account in criminal sentencing.

Finally, there is the question of unintended negative consequences of such a law. The article in the Global Mail about the WA “one punch” law observed:

While no one seems to oppose holding one-punch killers accountable, women’s and human rights advocates are now raising concerns over the law.

“Since the unlawful assault causing death offence was enacted, the majority of convictions have been against men who have killed their partner or ex-partners,” says Rachel Ball, director of policy and campaigns at the Human Rights Law Centre in Melbourne, which wrote a highly critical analysis of the law. They say some men who kill their partners or family members are pleading guilty to the one-punch offence so they can avoid the more serious charges of manslaughter or murder, which carry twice the maximum sentence.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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hammygar
hammygar
9 years ago

Personally I think persistently inadequate sentences for manslaughter need addressing by legislation.

This is very close to the totally discredited minimum sentencing legislation, which takes away judicial authority and gives it to uninformed legislators who have the mentality of bullying vigilantes. As a civilised nation we must not go there.

paul walter
paul walter
7 years ago
Reply to  hammygar

Ken.s comment is dead right, yet so is hammygars.
The problem seems to stem from the quality of magistrates and the judiciary. Some will wrist-slap egregious crimes, others will have you virtually keel-hauled for pilfering a Jaffa.

TJW
TJW
9 years ago

I miss posts like this one. It reminds me of the old Club Troppo days (or The Parish Pump even.)

On topic, I don’t have a problem with the narrowing of judicial discretion – I guess it’s been going on for centuries – IIRC from my uni days, all offences and maximum sentences were originally defined by common law, and today we even define the specific criteria judges must use when sentencing (through the Sentencing Act etc.)

As far as deterrence goes, these laws might only deter a person from punching anyone (i.e. they’re focused purely on the intention to throw any punch,) or from getting so drunk or drugged that you lose the ability to control yourself. I don’t like the unintended consequences though.

paul walter
paul walter
9 years ago

I totally agree with hammygar, yet feel utterly incensed at yet another gutless avoidance of responsibility from a magistrate or judge..
Hammygar, what would be your solution?

derrida derider
derrida derider
9 years ago

Yes, on the face of it the sentence looks inadequate. But surely you’re experienced enough to know that “on the face of it” is an extremely unreliable guide – there may be all sorts of things that came out in court that render the sentence quite reasonable in the circumstances. Don’t judge without reading the full transcript.

Which, of course, is exactly why things like mandatory minimums are unjust and often counterproductive. They can’t account for those circumstances.

Manik
Manik
9 years ago

I believe the unintended consequences go beyond dodging sentencing and go to”who” may actually be affected by the law. For example, imagine in the discourse of their duty a police officer, ambulance officer, fireman punches a person and that person dies where would they stand in regards to the law. It may seem slightly far-fetched but we recently had a case where a person taken into custody in Alice Springs was found dead in the cell and the CCTV footage presented a very ugly picture in regards to police treatment.

To avoid such a situation police would need to be given some form of indemnity to complete their duties, which raises the question why they should be above the law?

It is quite often the case that in populist knee jerk policy there are always unintended consequences. I well remember the first person jailed for three months under Shame Stone’s mandatory sentencing for property crime was a teacher’s aide who had spilled/poured water on a cash register. Hardly a jailing offence.

Sue
Sue
7 years ago

Same treatment for parents/carers who leave their children in hot cars to go to work or shop. Same for those also who are never around when the toddler drowns or gets killed by a car. Mums who break the law and kill children outside school.