Hansard debates

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