Sentencing Amendment (Coward's Punch Manslaughter and Other

Matters) Bill 2014

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the purposes of the Bill. The Bill amends provisions in the Crimes Act 1958 to provide that certain acts are taken to be dangerous acts for the purposes of unlawful and dangerous act manslaughter. The Bill also amends the Sentencing Act 1991 to provide statutory minimum sentences of 10 years imprisonment for manslaughter in certain circumstances, and to require the DPP to give notice of the prosecution's intention to seek the statutory minimum sentence in manslaughter trials.

Clause 2 provides for the commencement of the Bill.

Subclause (1) provides that Part 1 and Part 5 come into operation on the day after the day on which the Act receives Royal Assent.

Subclause (2) provides for the commencement of Division 2 of Part 3. That Division makes amendments to new sections 9B and 9C of the Sentencing Act 1991, which will be inserted by Division 1 of Part 3. Those amendments are required as a consequence of amendments that are intended to be made to the Crimes Act 1958 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. If section 6 of that Act comes into operation on the same day that Division 1 of Part 3 of the Bill comes into operation, Division 2 comes into operation on that day. Otherwise, Division 2 comes into operation on the later of the day on which Division 1 comes into operation, and the day

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on which section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, comes into operation.

Subclause (3) provides that the remaining provisions come into operation on a day or days to be proclaimed, subject to subclause (4).

Subclause (4) provides that if a provision referred to in subclause (3) does not come into operation before 1 November 2014, it comes into operation on that day.

PART 2—AMENDMENT OF CRIMES ACT 1958

Clause 3 inserts new section 4A into the Crimes Act 1958 to provide that certain acts are taken to be dangerous acts for the purposes of unlawful and dangerous act manslaughter.

New section 4A applies to a single punch or strike that is delivered to any part of a person's head or neck that by itself causes an injury to the head or neck. Injury takes its meaning from section 15 of the Crimes Act 1958. This will mean that the punch or strike must be delivered with sufficient force to cause an injury to the victim. This will preclude acts such as a slight push or gentle slap from fitting within the new section.

New section 4A(2) provides that a single punch or strike, as described in new section 4A(1), is taken to be a dangerous act. This will mean that in cases where the prosecution must prove that the unlawful act which caused the victim's death was dangerous, the prosecution may rely on new section 4A to assist in proving this element of the offence.

New section 4A(3) provides that it is irrelevant that the single punch or strike is one of a series of punches or strikes. In situations where there are numerous punches or strikes, the prosecution may rely on new section 4A(2) if it can identify a single punch or strike as the dangerous act that caused the victim's death. If it cannot, the common law test of dangerousness will be used to determine whether the act that caused the victim's death was dangerous. This test is whether a reasonable person in the position of the accused would have realised that the conduct would expose the victim to an appreciable risk of serious injury—Wilson v The Queen (1992) 174 CLR 313.

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New section 4A(4) provides that a single punch or strike may be the cause of death even if the injury that caused the victim's death resulted from an impact to the person's head, neck or another part of the person's body, that was caused by the punch or strike. This will simplify the issue of causation in certain cases. As the example under new section 4A(4) illustrates, a person may cause another person's death where the person punches the other person to the head, and the other person falls as a result of the force of the punch, hits their head on the road, and dies from the injury resulting from their head hitting the road.

New section 4A(5) provides that new section 4A does not limit the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of unlawful and dangerous act manslaughter. The common law test for dangerousness continues to apply where the prosecution has not proved that an act was dangerous under new section 4A(2). New section 4A(5) means that nothing in new section 4A(2) changes how that test will be applied.

New section 4A(6) defines strike to mean a strike delivered with any part of the body. Examples of a strike include a kick, an elbow, a martial arts strike, or a hit with the forearm.

New subsection (6) also inserts two notes that cross-refer to the request for directions process under sections 10 and 11 of the Jury Directions Act 2013. The first note states that defence counsel must indicate whether or not it is in issue that the punch or strike was a dangerous act, or that the punch or strike caused the person's death. This process will identify those cases where a direction may need to be given about these issues. The second note states that the prosecution and defence counsel must each request that the trial judge give, or not give, directions about the matters in issue, including whether the punch or strike was a dangerous act, or whether the punch or strike caused the person's death. This allows for flexibility in deciding whether the prosecution case relies on either new section 4A(2), the common law, or both. For example, if one offender punches the victim from behind, which causes the victim to fall to the ground, and then while on the ground, another offender stomps on the victim's head, there may be an issue as to which act caused the victim's death. In these circumstances, the prosecution may prefer to rely only on the common law.

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Clause 4 inserts notes at the foot of section 5 of the Crimes Act 1958. Section 5 provides the punishment for manslaughter. The new notes cross-refer to the new statutory minimum sentence regime for manslaughter under new sections 9B and 9C of the Sentencing Act 1991. The notes also cross-refer to the special reasons provided for in section 10A of the Sentencing Act 1991, because that section applies to the new statutory minimum sentences provided for by new sections 9B and 9C. Note 3 refers to the notice requirements on the prosecution in new section 9A of the Sentencing Act 1991.

Clause 5 provides for transitional matters by inserting new section 624 into the Crimes Act 1958.

New section 624(1) provides that new section 4A of the Crimes Act 1958 only applies to an offence alleged to have been committed on or after the commencement of clause 3 of this Bill. New section 624(2) provides that if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of clause 3 of this Bill, it is alleged to have been committed before that commencement.

PART 3—AMENDMENT OF SENTENCING ACT 1991

Clause 6 inserts new sections 9A, 9B and 9C into the Sentencing Act 1991. These provisions relate to sentencing an accused who is found guilty of manslaughter in circumstances of gross violence (new section 9B), or manslaughter by a single punch or strike (new section 9C).

New section 9A sets out the process that the DPP must follow to give notice of the prosecution's intention to seek the imposition of a statutory minimum sentence under new section 9B or 9C. The notice ensures procedural fairness to the accused by providing sufficient notice of the prosecution's intent to prove the factors outlined in new section 9B or 9C prior to entering a plea of guilty, or prior to trial. If the notice requirements are not complied with, the statutory minimum sentence regime cannot apply.

New section 9A applies both to a committal proceeding and trial for an offence of murder or manslaughter. At the end of a committal proceeding, the accused is asked whether he or she pleads guilty or not guilty to the offence. New section 9A enables the prosecution to give notice prior to the accused

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entering a plea, as this information may be relevant to the plea that the accused decides to enter. New section 9A(1) includes a note explaining that the provision refers to both murder and manslaughter because manslaughter is available as an alternative verdict in a trial for murder. The prosecution's case may be that the accused is guilty of murder, but if the jury finds the accused not guilty of murder, that the accused is guilty of manslaughter. If the jury does find the accused not guilty of murder but guilty of manslaughter, the giving of notice by the prosecution in accordance with this section will mean that the prosecution may seek the imposition of a statutory minimum sentence for the offence of manslaughter in accordance with new sections 9B or 9C.

New section 9A(2) provides that the DPP may give notice of the prosecution's intention to seek the statutory minimum sentence under new section 9B or 9C. If the prosecution does not intend to seek the statutory minimum sentence, the prosecution does not need to give any notice.

If the DPP decides to give notice, new sections 9A(3) to (9) will apply. New section 9A(3) requires the DPP to indicate whether it intends to prove that the manslaughter was in circumstances of gross violence (under new section 9B) or was manslaughter by single punch or strike (under new section 9C).

New section 9A(4) provides that the DPP must serve the notice on the accused by ordinary service and file a copy with the court.

New section 9A(5) provides when notice must be given. The DPP must give the notice to the accused—

in a committal proceeding, before the accused is committed for trial; or

in a trial, on or before the prosecution opening summary is filed and served, unless the accused is to be arraigned before a prosecution opening summary has been filed and served, in which case the notice must be given at least 7 days before the arraignment.

New section 9A(6) provides that the trial court may abridge the time for service of the notice prior to arraignment if it considers that it is in the interests of justice to do so. There may be occasions where the prosecution and accused negotiate a plea agreement that includes an understanding that the prosecution

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will seek the statutory minimum sentence under new section 9B or 9C. In these circumstances, a full 7 days notice may not be necessary and could unduly delay the plea proceedings. New section 9A(6) is intended to provide flexibility in these circumstances.

New section 9A(7) provides that supporting material is not necessary to make an order abridging time under new section 9A(6). A similar provision is contained in section 247 of the Criminal Procedure Act 2009.

New section 9A(8) allows the DPP to revoke a notice at any time by serving a notice of revocation by ordinary service and filing a copy with the trial court. This will provide the DPP with the flexibility to choose not to seek the statutory minimum sentence, where previously the DPP's intention was to seek the statutory minimum sentence.

New section 9A(9) provides definitions for filing and serving notice under the section. Notice must be filed with the court in which the proceeding is, or is to be, held. The definition in the Criminal Procedure Act 2009 of ordinary service applies to service of the notice.

Sentencing for manslaughter in circumstances of gross violence

New section 9B requires a custodial sentence to be imposed for manslaughter committed in circumstances of gross violence. This requirement applies if a notice has been served and filed under new section 9A. However, the requirement does not apply if the court finds under section 10A that a special reason exists.

New section 9B(1) applies to the sentencing of an offender for manslaughter if the prosecution has filed and served notice under new section 9A, the notice specifies that it relates to section 9B and the notice has not been revoked. If the prosecution has not complied with these notice requirements, the sentencing court must sentence the offender in the usual way.

New section 9B(2) provides that in sentencing an offender for an offence of manslaughter, the court must impose a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists. (See the discussion under clause 8 in relation to special reasons.) The statutory minimum sentence must be applied whether after a trial or on appeal against sentence.

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Section 11 of the Sentencing Act 1991 applies in such cases. For example, the minimum non-parole period of ten years must be at least 6 months less than the term of the sentence, as required by section 11(3) of the Sentencing Act 1991. That is, the head sentence or total effective sentence must be a sentence of imprisonment for at least ten years and six months. This does not prevent the court from imposing a term of imprisonment longer than the statutory minimum sentence.

New section 9B(2) only applies to adult offenders (see new section 9B(4)), and only if the court is satisfied of certain aggravating factors beyond reasonable doubt. These factors are set out in new section 9B(3).

The first requirement in all cases is that the offender acted in company with 2 or more other persons in causing the victim's death, or participated in a joint criminal enterprise with 2 or more other persons in causing the victim's death. The statutory minimum will apply if the prosecution also proves that that the offender—

planned in advance to have and to use an offensive weapon or firearm and used that weapon or firearm to cause the victim's death;

planned in advance to engage in the conduct that caused the victim's death and a reasonable person would have foreseen that the conduct would be likely to result in death; or

caused two or more serious injuries to the victim during a sustained or prolonged attack on the victim. The Crimes Act 1958 definition of serious injury includes an injury that endangers life or that is substantial and protracted.

This limits the statutory minimum sentence to offenders who engage in group violence involving 3 or more persons, and whose involvement satisfies one of the three listed factors. For example, an offender who engaged in a joint criminal enterprise and is liable for the offence of manslaughter due to his or her involvement, will not satisfy the other factors unless he or she planned in advance and either used the weapon or foresaw the likelihood of death (as the case may be) or personally caused two or more serious injuries to the victim.

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The factors are based on those contained in the gross violence causing serious injury offences. However, there are important differences. First, there is the threshold factor of 3 or more persons being involved in the offending which is required in all cases for the statutory minimum sentence to apply. Second, the factor in new section 9B(3)(b)(i) is essentially the same as the factors in sections 15A(2)(d) and 15B(2)(d) of the Crimes Act 1958 but does not include an imitation firearm. Third, new section 9B(3)(b)(ii) is modelled on section 15A(2)(a)(iii) and 15B(2)(a)(iii) of the Crimes Act 1958 but the "foreseeability" of the offender has been modified from serious injury to death to capture the most serious forms of dangerous conduct. Finally, new section 9B(3)(b)(iii) differs from the gross violence factors on incapacitation in sections 15A(2)(e) and (f) and 15B(2)(e) and (f) of the Crimes Act 1958. In many cases, a person who is killed will have been incapacitated before they died. Accordingly, new section 9B(3)(b)(iii) focuses on causing two or more serious injuries to the victim in a sustained or prolonged attack.

As referred to above, the statutory minimum sentence does not apply to a person who is under the age of 18 years at the time of the commission of the offence of manslaughter (new section 9B(4)).

New section 9B(5) applies the existing definitions in section 15 of the Crimes Act 1958 of firearm, offensive weapon and serious injury.

Sentencing for manslaughter involving a single punch or strike

New section 9C requires a custodial sentence to be imposed for manslaughter committed in circumstances involving a single punch or strike unless a special reason applies. (See the discussion under clause 8 in relation to special reasons.) In many respects, this section mirrors new section 9B, except in relation to the aggravating factors (see new section 9C(3) to (5) and the scope of the exclusions (see new section 9C(6)(a)).

New section 9C(1) applies to the sentencing of an offender for manslaughter if the prosecution has complied with the necessary notice requirements. If the prosecution has not complied with the notice requirements, the sentencing court must sentence the offender in the usual way.

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New section 9C(2) provides that in sentencing an offender for an offence of manslaughter, the court must impose a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists. The statutory minimum sentence must be applied whether after a trial or on appeal.

New section 9C(2) only applies if the court is satisfied of certain aggravating factors beyond reasonable doubt. These factors are set out in new section 9C(3), and are explained further in new section 9C(4) and (5).

New section 9C(3) provides that the court must be satisfied that—

the victim's death was caused by a punch or strike to which new section 4A(2) of the Crimes Act 1958 applies (see clause 3); and

the offender intended to punch or strike the victim's head or neck; and

the victim was not expecting to be punched or struck by the offender; and

the offender knew that the victim was not expecting, or was probably not expecting, to be punched or struck by the offender.

The court may be satisfied that a victim was not expecting to be punched or struck by the offender, and that the offender knew that the victim was not expecting, or probably not expecting to be punched or struck by the offender, even if there was an earlier confrontation between the victim and the offender or any other person (new section 9C(4)). This means that an earlier scuffle in a venue, or an earlier oral exchange or threat, will not preclude the sentencing court from finding that the victim was not expecting to be punched or struck by the offender. This provides flexibility for the court to assess the individual circumstances of each case.

In addition, new section 9C(5) provides that a warning given to the victim by the offender immediately before delivering the punch or strike, does not mean that the victim was expecting to be punched or struck by the offender. The example to new section 9C(5) illustrates that where a warning is so close in time to the delivery of the punch or strike, it cannot be said that the victim was expecting to be punched or struck by the offender.

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This provision applies where an offender, without any warning, hits someone from behind and to the back of their head, as well as other scenarios where an offender fatally assaults a person (such as, where the offender sprints up to someone from the side, and punches their head).

New section 9C(6) provides that the courts cannot impose the statutory minimum sentence on a person under the age of 18, or on a person who aids, abets, counsels or procures the commission of the offence. A similar provision is contained in section 10(2) of the Sentencing Act 1991, in relation to statutory minimums for certain gross violence offences. Section 323 of the Crimes Act 1958 provides that a person who aids, abets, counsels or procures the commission of an indictable offence may be tried and punished as a principal offender. This exclusion recognises the wide range of culpability that may arise in the context of single punch or strike manslaughter, by ensuring that the sentencing court is not required to impose the statutory minimum sentence in such cases.

New section 9C(7) provides that strike has the meaning given by new section 4A of the Crimes Act 1958 (see clause 3 of this Bill).

Clause 7 amends the heading to section 10 of the Sentencing Act 1991 so that it refers specifically to "causing serious injury in circumstances of gross violence", rather than referring generally to "gross violence offences". This amendment is required due to new section 9B, which relates to custodial sentences for manslaughter in circumstances of gross violence.

Clause 8 amends section 10A of the Sentencing Act 1991. New sections 9B and 9C provide that a sentencing court must impose the statutory minimum sentence unless it finds under section 10A that a special reason exists. Only one special reason is required to displace the statutory minimum sentence. It is open to the court to find more than one special reason exists.

Section 10A provides that a court may find that a special reason exists if—

the offender has assisted, or has undertaken to assist, law enforcement authorities;

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the offender is aged between 18–20 years at the time of the offence and proves, on the balance of probabilities, that he or she has a particular psychosocial immaturity that resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age;

the offender proves, on the balance of probabilities, that he or she had impaired mental functioning that is causally linked to the offending and substantially reduces their culpability, or that would result in them being subject to significantly more than the ordinary burden or risks of imprisonment;

the court proposes to make a hospital security order or a residential treatment order in respect of the offender; or

there are substantial and compelling reasons that justify doing so.

For example, the sentencing court may find that there are substantial and compelling reasons for not imposing the statutory minimum sentence for manslaughter involving a single punch or strike, if the case is at the very low end of culpability for that type of offending. When considering whether the circumstances are substantial and compelling, justifying a departure from the statutory minimum sentence, the court must have regard to two specific matters, set out in section 10A(3), as amended by this clause. First, the court must consider Parliament's intention that the sentence for such manslaughters should ordinarily be a prison sentence with a minimum non-parole period of 10 years. Secondly, the court must consider the cumulative impact of the circumstances of the case. The cumulative impact of the circumstances must be balanced against the presumption that the statutory minimum sentence should ordinarily apply.

Subclause (1) inserts a new heading to section 10A, to reflect that that section will apply to special reasons relevant to imposing minimum non-parole periods generally (not just for gross violence offences).

Subclause (2) amends section 10A(2) of the Sentencing Act 1991 to refer to new sections 9B and 9C, as well as section 10. This reflects that special reasons may exist in relation to sentencing under each of these provisions.

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Subclause (3) inserts new section 10A(3)(aa) to reflect Parliament's intention that a non-parole period of 10 years should ordinarily be fixed in sentencing an offender for manslaughter in circumstances of gross violence or involving a single strike or punch. This is relevant to the "substantial and compelling reasons" test referred to above.

Clause 9 inserts new section 152 into the Sentencing Act 1991.

New section 152(1) provides that new sections 9B and 9C only apply to the sentencing of an offender for an offence alleged to have been committed on or after the commencement of Division 1 of Part 3 of this Bill. New section 152(2) provides that if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Division 1 of Part 3 of this Bill, it is alleged to have been committed before that commencement.

Clause 10 substitutes a new section 9B(3)(a)(ii) of the Sentencing Act 1991 to reflect the changes to the laws of complicity inserted into Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. Rather than referring to a "joint criminal enterprise", the provision will refer to the offender entering into an agreement, arrangement of understanding with 2 or more persons to engage in conduct that resulted in the victim's death.

Clause 11 substitutes a new section 9C(6)(a) of the Sentencing Act 1991 to reflect the changes to the laws of complicity inserted into Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014. Rather than referring to "aids, abets, counsels or procures", the provision will refer to the offender's involvement in the commission of the offence within the meaning of section 323(1)(a) and (b) of the Crimes Act 1958. This clause also repeals the note at the foot of section 9C(6)(a) as it will no longer be required once the section is amended.

PART 4—AMENDMENT OF OTHER ACTS

Clause 12 amends section 10 of the Sentencing Amendment (Baseline Sentences) Act 2014 to substitute "155" for "152". This will ensure that transitional provisions in the Sentencing Act 1991 are correctly numbered.

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Clause 13 repeals section 5(1) of the Sentencing Amendment (Emergency Workers) Act 2014 (subclause (1)). Subclause (2) amends section 10A(2) of the Sentencing Act 1991, to refer to each section to which special reasons may apply, being new sections 9B, 9C, 10 and 10AA. New section 10AA is being inserted by the Sentencing Amendment (Emergency Workers) Act 2014. Subclauses (3) and (4) amend section 12 of the Sentencing Amendment (Emergency Workers) Act 2014 to substitute "625" for "623", to ensure that the transitional provisions in the Crimes Act 1958 are correctly numbered.

PART 5—REPEAL OF AMENDING ACT

Clause 14 provides for the repeal of this amending Act on 1 November 2015. The repeal of this Act will not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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