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12 March 1991 - Current

 
SENTENCING AMENDMENT (COWARD'S PUNCH MANSLAUGHTER AND OTHER MATTERS) BILL 2014
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20 August 2014
ASSEMBLY Statement of Compatibility CLARK

SENTENCING AMENDMENT (COWARD'S PUNCH MANSLAUGHTER AND OTHER MATTERS) BILL 2014

Statement of compatibility

Mr CLARK (Attorney-General) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006: In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter act'), I make this statement of compatibility with respect to the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014. In my opinion, the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014 (the 'bill'), as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement. Overview The main purposes of the bill are to amend the Crimes Act 1958 (Crimes Act) and the Sentencing Act 1991 (Sentencing Act) to: define certain acts as dangerous for the purpose of unlawful and dangerous act manslaughter; provide for the serving of a notice of the prosecution's intention to seek a statutory minimum sentence; and introduce a statutory minimum sentence of imprisonment for unlawful and dangerous act manslaughter in certain circumstances. Human rights issues Deeming provision The right to be presumed innocent (section 25(1)) Clause 3 of the bill amends the Crimes Act to provide that 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, is taken to be a dangerous act for the purpose of unlawful and dangerous act manslaughter. The presumption of innocence is relevant because the provision deems an act to constitute one of the elements of the offence of unlawful and dangerous act manslaughter. However, the provision does not transfer the burden of proof because the burden remains on the prosecution to prove beyond reasonable doubt that the punch or strike was delivered to the victim's head or neck, and that the punch or strike, by itself, caused injury to the victim's head or neck. Further, the prosecution still must prove beyond reasonable doubt all the other elements of the offence. Consequently, the provision does not limit the right to the presumption of innocence. Statutory minimum sentences Clause 6 of the bill amends the Sentencing Act to create two new sets of aggravating factors that apply when sentencing an
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offender for unlawful and dangerous manslaughter in circumstances of gross violence or involving a single punch or strike. The bill provides that circumstances of gross violence exist if an offender acts with two or more other persons in causing the death of the victim, and a specified circumstance exists (for example, the offender causes two or more serious injuries to the victim during a sustained or prolonged attack). The circumstances involving a single punch or strike exist where the offender intended that the punch or strike be delivered to 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 probably not expecting the punch or strike. If either set of aggravating circumstances applies, the bill requires a sentencing court to impose a minimum 10-year non-parole period unless a special reason exists. Section 10A of the Sentencing Act, which contains an exhaustive list of special reasons for which a judge may depart from the statutory minimum sentence, will apply to these cases. In my view, these amendments are an appropriate response to the impact of violent crime in Victoria, in particular the so-called 'coward's punch' cases. As discussed further below, the bill does not limit human rights set out in the charter act because the provisions are strictly limited and directed at high-level offending, and they retain the court's discretion to depart from the statutory minimum where appropriate. Protection from cruel, inhuman or degrading punishment (section 10) Section 10 of the charter act relevantly provides that a person must not be punished in a cruel, inhuman or degrading way. In my opinion, the statutory minimum sentences introduced by the bill do not limit this right. These statutory minimum sentences focus on violent assaults involving a high level of culpability which result in death. The factors that constitute manslaughter in circumstances of gross violence are exhaustively listed and focus on group violence, a level of premeditation prior to or during the offending, or seriously violent conduct that is part of a sustained or prolonged attack. In some cases, these factors will capture offenders with levels of culpability just short of a murderous intent. Their application is strictly limited and directed to offences at the most serious end of the range of wrongdoing. The factors that constitute manslaughter committed in circumstances of a single punch or strike are exhaustively listed and focus on the knowledge of the offender that the victim was not expecting or was probably not expecting the punch or strike. The factors focus on offending involving a high level of culpability where the offender attacks the victim when the victim is in an obviously defenceless state. Moreover, the bill acknowledges that the statutory minimum sentence may not be appropriate in all cases. The bill's safeguard against the imposition of a disproportionate sentence is to allow a court to depart from the statutory minimum if it finds that the personal characteristics of the offender and/or the circumstances of the case justify doing so. If a court finds that a special reason exists, it has full discretion and may impose any sentence it considers appropriate. Right to a fair trial (section 24) Section 24 of the charter act relevantly provides that a person charged with an offence has the right to have the charge decided by an independent and impartial court after a fair hearing. Nothing in the bill limits the right in section 24 of the charter act. For the statutory minimum sentence to apply, the prosecution must first give notice of its intention to prove the aggravating factors, and must then prove those factors beyond reasonable doubt. These provisions provide procedural fairness to the accused. While the bill prescribes the minimum sentence for manslaughter involving a single punch or strike, or circumstances of gross violence, the court has discretion to impose any sentence within the parameters of the minimum and maximum sentences. Furthermore, as outlined above, the special reasons provisions allow the courts to depart from the statutory minimum sentence where appropriate. I also note that the High Court has consistently held that provisions imposing mandatory minimum sentences, which this bill does not do given the special reasons provisions, do not constitute a usurpation of judicial power and, as such, are not constitutionally objectionable. Robert Clark, MP Attorney-General