The New Daily

Why ‘one-punch’ laws are woefully misguided

There is no single-punch epidemic in Australia, writes Luke O’Neill. What headaches will the new booze and anti-violence laws cause?

NSW Premier Barry O'Farrell. Photo: Getty

· Punch victim Daniel Christie dies
· Alcohol-fuelled violence: Our fault, not alcohol’s
· One punch changed my life

As C.S. Lewis wrote in Mere Christianity, reality is odd. Take New South Wales’ new booze and anti-violence laws and the Australian Medical Association’s recent call to the federal government to convene a summit on our ‘booze-soaked’ culture.

Queensland is getting in on the act, too. Campbell Newman last month announced his government will give a “very clear, very strong” response to the issue. Seeking feedback from the electorate, his office has posted a link to a Wikipedia article on his Facebook page. So, you know, keep your eyes peeled for some more thoughtful legislation.

Deaths from single-punch assaults are unquestionably tragic. All right-thinking people have sympathy for the grief of all involved. But such attacks are also rare. There is no epidemic.

As Guardian Australia has reported, incidents of alcohol-related violence in New South Wales are at their lowest level in over a decade.

You would not have gleaned this by reading the Sydney Morning Herald or Daily Telegraph over the past month.

Domestic assaults and violence against women continue at a far higher rate (There are numbers for such violence here). Both Fairfax and News Limited’s campaigns over so-called ‘alcohol-fuelled’ violence demonstrated selectivity toward the reporting of violent assault in New South Wales. Our current myopic focus is preventing the grasp of sharper nettles.

With their coverage of one-punch assaults Fairfax and News have conflated crime that is unusual — and therefore of a high ‘news value’, in the traditional journalistic sense — with crime that commonly occurs and is rising to the point of challenging law enforcement and court capabilities. They have ‘won’ the battle, but at what cost?

Troublingly, the New South Wales Police used the term ‘coward’s punch’ in a recent official media release (We do not link to the statement because the matter is now before the courts). Pause for a moment to think about how such language could injure the principle of presumed innocence. The perils to trial are clear.

Moral panic has long been media bread and butter. The real concern is what this perpetuated unreality has unleashed: bad law. It is a great disservice to the electorate when public policy is made on the hoof.

The crude world of media reductionism heralds a victory for toughness on crime. But what headaches will the new sentencing rules cause?

While their knee-jerk creation is troubling in of itself, the content of New South Wales’ new booze and anti-violence laws is more egregiously problematic. Mandatory minimum sentences for offences such as assault occasioning bodily harm and the broadly applicable offence of affray is woefully misguided. Crime and law are neither black nor white. Judges navigate a complex environment, where every case is different.

The legal world is alarmed by the measures. NSW Supreme Court Chief Justice Tom Bathurst recently urged a cooler debate on mandatory sentencing, in remarks to the NSW Law Society.

“Ultimately the question must be whether, regardless of the circumstances in which an offence was committed and regardless of the circumstances of the offender, a particular mandatory minimum sentence will always be justified,” said Chief Justice Bathurst.

NSW’s top judge also noted that research showed that “a significant proportion of the community is misinformed about crime and sentencing” and “change their views of sentencing when presented with accurate information”. Fairfax and News can read into that what they wish.

The president of the New South Wales Bar Association, Phillip Boulten, has also spoken out about the measures. “Mandatory sentencing is a ‘one size fits all’ form of justice, which fails to take into account the individual circumstances of each case,” he said.

“Mandatory sentencing laws do not deter criminal activity. They remove discretion from judges. They result in penalties that are often disproportionately harsh.”

Last year, Victoria introduced minimum mandatory sentences for offences causing serious injury and reckless serious injury, where gross violence was involved. The Law Institute of Victoria (LIV) opposed their introduction.

Back then, LIV highlighted various problems with minimum mandatory sentencing in a submission to attorney-general Robert Clark. The institute warned that mandatory sentencing: fails to reduce crime, clogs up courts due to more defendants contesting charges, and adds to costs for prison housing. It also warned of a disproportionate effect on juveniles. This advice went unheeded.

We need to start listening to the wisest voices, not the loudest ones. Reality is odd. Unreality is dangerous.

Luke O’Neill is a Sydney-based journalist, editor and online producer.

  • 1Linron

    Moral panic has long been media bread and butter. The real concern is what this perpetuated unreality has unleashed: bad law. It is a great disservice to the electorate when public policy is made on the hoof.With their coverage of one-punch assaults Fairfax and News have conflated crime that is unusual — and therefore of a high ‘news value’, in the traditional journalistic sense —

    We are seeing more and more public policy being driven ahead of the 24 hour news cycle and the self elected social guardians in the media usually full of self righteous satatments. We saw a similar response to the allergic reaction to nuts in the playground this week. Lets legislate. Ban nuts. No evidence based decisions just knee jerk reactionism because is good for political profile. We need to curb this. Shallow and insular.

  • BJ

    Why is mandatory sentencing such an issue, the point is not just deterrence, but it is also about retribution and seeing that justice is done. I think it can also be safely assumed that serious offenders are not often productive, wanted members of society, so to some extent it also about shelving the unwanted. No suspended sentences, no bonds, simply removal of the inconvenient. And why is that so bad. Why not introduce it for all forms of violence occasioning serious harm, or in fact any indictable crime. Why does the legal profession so preciously gaurd its need for discretion, and why do people assume a judge should be afforded such an ability given the differences in how each of us differently perceives the circumstances they encounter, whether through genetic disposition, or life experiences. Why not make the whole penalty system objective, and leave the role of judges solely to determine innocence or guilt. Fixed penalties are nothing new, and I defy anyone to seriously suggest that having a judge impose a penalty based upon the facts poses a greater deterrent than a mandatory sentence. Oh, perhaps a criminal defence lawyer would. Perhaps an erosion of the fees earnt from sentencing submissions and appeals against sentences considered improper might also play a role in encouraging such an assertion. Perhaps it is driven by a desire for mercy. Victims of all forms of crime and their families are unlikely to take the same view, and surely their views must come first. And yes, I am a member of the legal profession. I expect the majority of my colleaugues are unlikely to agree, but that is one of the treasures of democracy.

  • TC

    But the article is just words it doesn’t say why one punch laws are woefully misguided. Of course the judiciary will always object to elected politicians telling them what to do, why wouldn’t they the judiciary doesn’t want anyone messing in their muck heap; they believe that they and only they are the font of all knowledge on justice and the public doesn’t count. If they want to keep the politicians and the public out of giving opinions on sentencing, they should move away from their current regime of wrist slapping and good behaviour bonds for serious crime and serious offences and give realistic sentences or get rid of the geriatric do gooders who perpetuate this practise. The public want serious criminals punished and removed from the streets, we live in the real world and we are sick of inaction on crime by the people who are paid handsomely to do their job.

  • momo80

    Under O’Farrel’s one punch laws Tony Abbott would be a criminal for his king hit on Joe hockey during his university days.

  • sue

    The laws are very wrong. If a woman kills a child by reckless driving she just has to advise Police she would like charges dropped and refuse to go to Court and have the matter dealt with under Section 32 of the Mental Health Act. Same should apply in drunken fights.

  • Pingback: Why ‘one-punch’ laws are woefully m...

Try us on tablet & mobile