Ineffective one-punch mandatory sentences should be scrapped, says Law Council
Banker jailed for one-punch attack
Investment banker James Longworth is sentenced to a maximum of four years and ten months for a one-punch attack on Sydney bouncer Fady Taiba in 2013.
Lawyers are calling for mandatory minimum sentences for 'one punch' homicides to be scrapped, arguing that they are not working to prevent violent crime and can have unjust outcomes.
NSW and Victoria both introduced mandatory minimum prison terms for causing deaths with a single strike in 2014, following high-profile deaths in each state.
In NSW, offenders who are intoxicated during such an attack must be sentenced to at least eight years in prison. There is no mandatory minimum sentence for those who were not intoxicated at the time. In Victoria, offenders convicted of manslaughter must be sentenced to at least 10 years if the court is satisfied the victim was not expecting to be hit.
Barry Lyttle and his brother Patrick leave court after Barry received a suspended sentence. Photo: Daniel Munoz
Fairfax has been told that no one has been sentenced under these laws since they were introduced,though there are four men in NSW who have been charged with assault causing death while intoxicated, and three men charged with assault causing death.
The Law Council of Australia will tell a Senate inquiry on Friday that all mandatory minimum penalties for drunken violence offences should be repealed, saying there is no evidence they help reduce crime.
"Mandatory sentencing can actually create greater law and order problems, because we know that imprisonment is a terrific way to increase the chances of an individual engaging in more serious criminal acts down the track," the Council's president, Stuart Clark, said.
David Cassai was killed by one punch on New Year's Eve 2012.
Mr Clark said that harsher maximum sentences could be introduced instead.
Governments should instead invest in treatment services and education about alcohol misuse, particularly targeted at Aboriginal and Torres Strait Islanders, who were over-represented in prisons.
He pointed to a NSW case of Irish tourist Barry Lyttle as an example of the "perverse outcomes mandatory sentencing can create." Mr Lyttle, who sent his brother into a coma with one punch to the head, was last year granted a 13-month suspended sentence. The victim, Patrick Lyttle, had asked the court to allow his brother to go home.
"If Barry Lyttle had been just a little more intoxicated and if his brother had died in hospital, we would have seen an automatic sentence of eight years in prison. How would such an outcome have served the community?" Mr Clark said.
Melbourne woman Caterina Politi successfully lobbied for "coward punch" reforms in Victoria after her son, David Cassai, was killed in an unprovoked attack and his killer was sentenced to six years in jail.
"We wouldn't need mandatory minimums if the sentences were harsh enough," she said.
Ms Politi, who speaks at schools about the danger of one-punch attacks, said the law would not have prevented her son's death but a combination of harsher penalties and education may have. While assaults in Victoria continued to rise, she said, "that combination is more likely to see a reduction [in violent crime] over the next five to 10 years".
She said Victoria's laws should be consistently applied around Australia, and disagreed with NSW's approach of creating an aggravated crime for intoxicated offenders: "A death is a death."
Criminal law Associate Professor Julia Quilter, at the University of Wollongong, said the sentences were unnecessary because such attacks were already punishable under the crimes of manslaughter and murder and belonged to a lower tier of criminal liability. They were also open to legal loopholes that could operate unjustly.
"Why isn't it just as serious if a person hits someone in the head when they're stone cold sober and means to do it as opposed to an intoxicated person? Why is it less serious that someone yells [that they are about to punch their victim if] they still die?"
Associate Professor Quilter did not think the sentences worked to deter people in the way that random breath tests did drink drivers: "The last thing someone thinks about at 3am is 'I could be exposed to a mandatory minimum sentence'."
Reforming alcohol taxes and licensing restrictions were more effective ways of reducing the amount people drank, Julia Quilter