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Mandatory sentences can’t deliver justice or stop one-punch killings

The Victorian government’s introduction of the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 this week has again sparked debate about the deterrence value and general utility…

Proportionality in sentencing cannot be achieved through mandatory sentences created as a result of an overreaction to community fear and outrage. AAP/Dave Hunt

The Victorian government’s introduction of the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 this week has again sparked debate about the deterrence value and general utility of mandatory sentencing.

This bill includes provision for a mandatory minimum sentence of ten years imprisonment for “coward punch” manslaughter offences: that is, where a death occurs after single punch or strike to a person’s head or neck. This follows similar legislation in NSW creating a mandatory sentence of eight years imprisonment for the new offence of alcohol or drug-fuelled assault causing death.

However, mandatory sentencing will not prevent or deter “coward punch” assaults. These are generally opportunistic crimes that do not involve any considered thought before the event. That is particularly so when the perpetrator is under the influence of alcohol or drugs.

Announcing the laws, Victorian premier Denis Napthine said:

People should step back and think before they throw a punch.

Although that is probably what people should do, it is naïve to believe that this will ever be the reality. Research from the Victorian government’s Sentencing Advisory Council clearly shows that increasing the length of prison sentences “does not produce a corresponding increase in deterrence” and:

… caution should be exercised if imprisonment is to be justified as a means of deterring all crimes and all kinds of offenders.

Lessons from NSW

The decision last month by the NSW Court of Criminal Appeal to significantly increase the sentence imposed on Kieran Loveridge for the “coward punch” manslaughter of Thomas Kelly highlighted the importance of a principled approach to sentencing.

In this case, the court allowed the Crown appeal against the inadequacy of the sentence imposed in the first instance and highlighted the necessity to reflect a host of sentencing factors and principles in re-sentencing Loveridge. The synthesis of the gravity of the offences and the features of the offender had to be carefully considered with all of the relevant purposes of punishment and principles of sentencing. These included general and specific deterrence, retribution and denunciation, but also rehabilitation.

Also, with multiple violent offences, the sentencing principles of accumulation, concurrency and totality had to be factored into sentencing. Such myriad sentencing factors and principles can only be effectively combined through a process that utilises the particular expertise and experience of judicial officers.

Mandatory sentences, including those in proposed changes to Victoria’s Sentencing Act for single-punch manslaughter, can never reflect such a complex combination of the relevant sentencing factors to achieve both individualised justice and general consistency in sentencing outcomes.

The appeal court in the Loveridge case also emphasised that sentencing for manslaughter offences of this nature could not be concentrated into a narrow range due to the broad circumstances presented in this offence category. Notably, although he was only an 18-year-old, Loveridge had a history of violence and was on probation when he killed Kelly.

The court observed that “it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences” because of the wide variation in circumstances of these cases. That observation underscores the inappropriate and disproportionate nature of a mandatory sentence for alcohol or drug-fuelled assaults resulting in death, and single-punch manslaughter generally.

The court emphasised that “attention must be given to the particular case before the sentencing court” and:

… it is unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter.

These observations accentuate the misguided nature of this new mandatory sentencing law for that particular offence category in Victoria.

The insightful and measured judgment in the appeal against Loveridge’s sentence demonstrates that courts take a principled approach to sentencing, which can never be achieved through a single mandatory sentence or grid approach to sentencing. The court strongly denounced Loveridge’s reprehensible conduct and stressed the need for:

… an emphatic response to give particular effect to the need for denunciation, punishment and general deterrence.

Together with the complex calculation of reflecting Loveridge’s criminality for all of his offences without being “crushing”, the sentences had to be rigorously crafted through the expertise and experience of senior judicial officers. In this regard, proportionality is a fundamental principle of sentencing. It cannot be achieved through mandatory sentences created as an overreaction to community fear and outrage.

Ultimately, more faith must be placed in the expertise and experience of the judiciary both at the trial and appellate levels to apply the tried and tested purposes and principles of sentencing in each individual case.