One Punch Law in the Australian Context - Essay Example

Running Head: One Punch Law One Punch Law in the Australian Context Name Institution Date One Punch Law in the Australian Context Thesis One Punch Law is not the solution to the complex social problem of assault causing death in Australia Introduction One Punch Law was introduced in the Australian Criminal Law for the purpose of covering situations that results to death from acts of violence that are senseless. It was introduced as a mandatory sentencing law that will help in ensuring that the applied sentences are a reflective of community standards and that they are not excessively lenient. Mandatory sentencing laws are required to ensure that there is a match between the given punishment and a crime (Roth, 2014:p.2). This helps in preserving confidence within the justice system. In Australia, one punch law was introduced to help in reducing crime by strongly deterring offenders and those who would be offenders. This law would also prevent criminal offences through the incapacitation of offenders for a period of time which is longer. The One Punch Law has been realized to be more lenient with prosecuting criminal offenders of assault that leads to death Quilter (2014: p.16). Offenders are seen to be sentenced for a few years when the offence mandates for a heavy punishment than just being sentenced for a few years in jail. This has raised a lot of concern from the media and the general public. This law is controversial and questions have been raised concerning its capacity in achieving the purpose it was enacted for. The creation of one punch law was specifically to punish people who commit one punch assaults that are fatal. Even with evidence which is supported, culprits are not given the expected punishment as it should be (Cullen, 2014:p.52). S 281 of the one punch law provides a maximum penalty for this kind of offence. However, its place in conviction as well as punishment is questionable when it comes to the minimum punishment that a culprit can be awarded (Cowdery, 2014:p.12). Therefore, there is a need to find out why this one punch law is unsatisfactory to be regarded as a solution to the offence of assault that leads to death. This essay describes why one punch law is not the ultimate answer to the complex social issue of assault that leads to death. The essay begins with evaluating the provisions of the one punch law, then its application and problems that are experienced in the Australian context. Provisions of the One Punch Law According to Ball (2012:p.1), the provisions of the one punch law is that; an assault of one person by another leading to death of that person either resulting from a direct or indirect assault, the perpetrator is guilty of an unlawful assault causing death offence. In Western Australia, the offender has a criminal liability of an imprisonment term of up to ten years while in the Northern Territory, the offenders has a criminal liability of up to sixteen years. Under Section 281 of the Criminal Code Act 1913 (WA), for a one punch law to apply, there must be an unlawful assault that has occurred and has led to death of a victim. This means that, when a person assaults another unlawfully and the other person dies as a result of the assault either direct or indirect, the offender is guilty of a criminal offence with a liability of ten years imprisonment (Carroll, 2014:p.1). Under subsection (1), an offender has a criminal liability even if there was no intention or foreseeability of death occurring to the other person or if there was no reasonable foreseeability of death. Violent attacks are recognized to be part of the offence since they are not acceptable behaviors. Therefore, offenders of violent attacks are responsible for their violent behaviors. The one punch law does not have a fault element which is subjective in relation to death consequence. The reason is that, there is an excuse of accident which is expressly excluded. The Application and Problems of One Punch Law in Australia One punch death results from an incident of one punch assault whereby death occurs by the use a single punch (Parliament of Australia, 2014: p.5). The physical aggression that arises between men is highly linked to masculinity as well as self esteem protection issues. Masculinity and self esteem protection issues are highly accelerated by intoxication that influences men to often respond quickly with violence. They do not consider what the consequences of their actions could be. The codified jurisdictions in Australia recognize the excuse of accident in cases of manslaughter when a victim death was not intended or was unforeseen and for an ordinary person, it will not be reasonably unforeseen (Yule, 2009:p.183). The short time that leads to one punch attacks which is followed by the attacker unintentional to kill, together with the unexpected death of the victim, is a basis with which the law provides an excuse for the perpetrator of the liability refereeing that the death occurred accidentally. This is a big loophole that exists in the Australian one punch law that releases one punch killers who walk freely after they are acquitted by juries who refer the deaths to have occurred accidentally. Reforms are called to amend the coded jurisdictions in the criminal law in Australia. The new unlawful assault that leads to an offence of death was enacted by the Government of Western Australia in the year 2008. This enactment has raised questions of its application to various situations such as fatal violence. According to Quilter (2014, p.17), one punch law cannot be considered to fill the gap of fatal violence since such a gap is inexistence within the jurisdictions code. It is very problematic when applying the one punch law in responding to domestic homicides. The one punch law has no relationship with the existing homicide offences. Therefore, fatality crimes provided in S 281 have received very little attention. The fact that there is little attention given for fatality crimes, this calls for caution when applying the one punch law to death that resulted from an assault that was serious. According to Brown & Quilter (2014:p.5), the one punch law is characterized by unintended consequences that call for a careful deliberation before a judgment to prosecute and sentence the offender is made. This law has also been criticized of having the capability to reduce the sentences of perpetrators in situations whereby the death of a victim occurs as a result of a single punch. This is precisely an effect which is opposite of the justification which is stated by the government for acting. The one punch law is a representation of another reform in the criminal law whose principle is devoid, it has no coherence in criminal law and its operation has no capability to deliver justice (The Law Society of NSW, 2014:p1). The one punch law is classified among the mandatory sentencing laws in Australia. These laws are found to have many limitations when it comes to providing justice to the victims of assault and violent acts. One punch law will not serve as a solution to the complex social issue of assault leading to death of a victim because the judicial discretion is removed from its provisions (Roth, 2014:p.3). Judges usually have difficulties in ensuring that the punishment and the crime match. Offenders of assault leading to the death of a victim end up receiving a lenient sentence. The fact that, there are increased penalties has not deterred people from getting involved with crime. The reason is that, since the one punch law provides excuse for offences that are committed accidentally, most of the perpetrators act irrationally and may be in the influence of alcohol or drugs. This may limit the judge’s decision to provide a correct sentence for an assault leading to death crime. Conclusion One punch law is one of the criminal laws in the Australian criminal law and justice system. It is said to deviate from the intention with which it was enacted for. This essay clearly provides evidence that, one punch law is not the ultimate answer for prosecuting criminal offenders of assault that leads to death of the victim. The application of this law has been recognized to present sentencing outcomes that are unjust, centrally to the expectations of the public as well as inequitable. The demands of public are not taken into consideration when it comes to seeking justice with the use of one punch law. The existing complex social problem of one punch assaults that are fatal need a better and reformed law that will provide justice for the victims and the affected parties. The big question is that “does the need of changing antisocial behavior really require law reform?” The matter is a social problem which is very broad in its prospect and may not even be considered as a legal issue. To effective apply for assault offences that lead to death, one punch law needs to be reformed to provide an increased punishment for these perpetrators. The current precedents of sentencing that stand; for example, sentencing an offender of assault leading to death to a five year jail term, is not a substantial punishment for such a crime and does not provide justice for the victim. References Ball, R. (2012). Human Rights Implications of ‘Unlawful Assault Causing Death’ Laws. Human Rights Law Center. 1-4. Brown, D. & Quilter, J. (2014). Speaking Too Soon: The Sabotage of Bail Reform in New South Wales. International Journal for Crime, Justice and Social Democracy. 3(3): 4‐28. Carroll, N. (2014). Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014. Extract From Parliamentary Debates. Second Reading. 1-3. Cowdery, N. (2014). Mandatory Sentencing. Sydney Law School. 1-14 Cullen, J. (2014). WA’S ‘One-Punch’ Law: Solution to a Complex Social Problem or Easy Way out For Perpetrators of Domestic Violence? Griffith Journal of Law & Human Dignity. 2(1). 52-57. Law Society of NSW. (2014). Letter sent to all MPs on Mandatory Sentencing 21 Februry 2014. The Law Society. 1-5. Parliament of Australia. (2014). Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014 Liquor Amendment Bill 2014. 1-58. Quilter, J. (2014). One punch Laws, Mandatory Minimums and ‘Alcohol Fuelled’ as an Aggravating Factor: Implications for NSW Criminal Law. International Journal for Crime, Justice and Social Democracy. 3 (1): 81-106. Quilter, J. (2014). The Thomas Kelly Case: Why a “One Punch”Law is not the Answer. Crim LJ. 38(16): 16-34. Roth, L. (2014). Mandatory Sentencing Laws. NSW Parliamentary Research Service. E-breif. 1- 15. Yule, J. (2009). Accident, provocation and jury reforms. Queensland Lawyer, 29(4): 183-185 Read More