A legal and social analysis of 'one punch' cases in Western Australia.

Author:Ferguson, Catherine
 
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I INTRODUCTION

As a result of increasing violence, particularly prevalent in the North Bridge entertainment area in Perth, (1) in August 2008 a new offence was added to the Western Australian Criminal Code 1913 (WA). (2) The formal terminology for this new offence is 'unlawful assault causing death. Colloquially it was referred to as 'One Punch' legislation; a term that has recently moved through other colloquial terms such as 'King Hit and currently 'Coward's Punch.' The change in colloquial terminology was an effort to stigmatise the behaviour in the eyes of young men, the targeted population of the legislation according to government and media reports.

Amendments to the WA Code were established in the Criminal Law Amendment (Homicide) Act 2008 (WA), which made a range of other significant changes to homicide law in Western Australia (WA). Many of the amendments were the result of recommendations made by the Law Reform Commission of Western Australia (LRCWA) in its 2007 report. (3) The new offence was introduced after a number of violent attacks that had resulted in the death of a victim and where the accused was acquitted of manslaughter as the intention to kill and the foreseeability of the death could not be proved. The new offence dispensed with the notion of foreseeability and intention, providing that criminal responsibility would still attach to the offender even if the offender did not intend the death of the victim, and even if the death was unforeseeable. (4)

The offence of unlawful assault causing death was not a recommendation of the LRCWA, (5) but was introduced as a result of public pressure and the WA State Government's need to be seen to be 'tough on crime.' (6) The introduction in 2012 of similar legislation in the Northern Territory (NT) (7) and in 2014 in New South Wales (NSW) (8) and Victoria (9) also appeared to be the result of intense media and public campaigning, (10) despite academic opinion that the existing criminal law did not require a 'one punch' law. (11)

This article considers some of the legal implications and unintended consequences of the WA legislation and uses the process of content analysis to analyse 12 cases of unlawful assault causing death that have passed through the WA court system, where the accused has either pled guilty or been found guilty of unlawful assault causing death. In 11 of the 12 cases, the offender pled guilty. The cases analysed in this article were identified from the records of the WA Office of the Director of Public Prosecutions (12) and the Judges Sentencing Remarks (JSRs). This allowed an analysis of several aspects of the case, including the offender's background (gender and age), details of the victim, the relationship between the victim and the offender, location of the offence, the sentence applied and the mitigating and aggravating circumstances taken into consideration in the sentencing. Legal aspects in relation to intention and foreseeability are also presented.

II THE INTENTION OF THE WEST AUSTRALIAN PARLIAMENT

The Parliamentary intention of introducing this law into WA was to target street male-to-male violence (13) which had increased by 71% between the years of 2005 and 2009 in the Northbridge entertainment precinct. (14) The male-to-male violence aspect of the legislation was noted in the JSRs in Western Australia v Anderson (15) and Western Australia v Mako (16) that '... the offence was introduced to deal with so called "one punch" homicides, where an offender punches a victim who falls, hits their head on the ground and dies ...' (17). Although many of the references to this offence in the Second Reading of the Criminal Law Amendment (Homicide) Bill 2008 (WA) used the term 'one punch', (18) the language used in s 281 of the WA Code is not to a specific 'one punch' assault; it is to 'assault' generally, thus encompassing the actions or conduct that fall within the definition of assault in the WA Code. (19) In other words, the way in which the WA legislation is phrased allows it to encompass other forms of assault (not only one punch) that result in the victim's death.

The Second Reading of the Bill continued over several sessions and suggested that the provision of s 281 would have a deterrent effect on such assaults. However, in the Parliamentary Debates on 6 May 2008 the following comment was made: 'On the surface it looks as though the legislation deals with one punch homicide situations, but a Pandora's box is being opened up almost by stealth in the way in which this legislation could be interpreted.' (20) On 18 June 2008 it was also observed that:

This is the so-called one punch homicide provision. As members will note, we are about to agree to this clause with virtually no debate, which is interesting in that the government's spin machine, which is dealing so effectively with the gas crisis and other things, would have us believe that proposed new section 281 is the beginning and end of this Bill in response to public concern about so-called one-punch homicides going unpunished. (21) The joint media statement issued by the WA Premier and Attorney General on 3 August 2008 indicated that a media campaign would be developed to make people aware of the consequences of 'one punch' attacks. (22)

As suggested from the Parliamentary Debates on 6 May 2008, s 281 has opened a Pandora's box and the intended target population, that is, young men swinging punches, is not the population that is being found guilty of this offence. The terminology used in the WA Code, 'unlawful assault causing death', has allowed it to be applied across a number of different circumstances, in particular, domestic violence, or intimate partner violence. (23)

A 2012 Human Rights Briefing Paper (24) considered the rights of women in relation to the use of this offence in cases where domestic violence has been present. Offenders tried and sentenced under this legislation may receive a shorter sentence than if charged and found guilty of manslaughter, for which the maximum sentence is greater. (25) Shorter sentences are likely to be applied due to the hierarchy of homicide offences in which murder is the highest, followed by manslaughter and then unlawful assault causing death. Rachel Ball indicated that a number of cases that have resulted in convictions under this legislation have involved inter-partner or domestic violence and that the application of the unlawful assault causing death rather than the higher offences reduces the value of the lives of women. This situation was also identified in Quilter's analysis of the WA data. (26) However, this new offence with its dispensation of intention and foreseeability has been found to be useful to bring perpetrators of violence to account and to be punished where previously a defence of accident (27) may have resulted in no punishment.

In describing the intention of this legislation, the WA government's media releases indicated that it was targeted at young males who frequented entertainment areas and who were often severely intoxicated. This notion has been replicated in the media in both NSW and Victoria when discussing the introduction of their legislation. There is a culture in Australia of masculinity that supports physical violence and which is 'both culturally respected and partly excused in law'. (28) Tomsen and Crofts suggest that there is still a socially acceptable masculine response to insult and that is to resort to violence. (29) This sensitivity to insults has been reported in men from lower socioeconomic groups who indicated a need to respond aggressively to insults and in some instances demonstrate their masculinity by not avoiding a physical conflict. (30) Sensitivity to insults is enhanced when alcohol has been used. (31) In an analysis of coward's punch deaths across Australia, Pilgrim, Gerostamoulos, and Drummer reported that 90 cases were identified within the years of 2000 to 2012. Taking a victimology approach, almost 80% of the deaths were those of young men who were under the influence of alcohol or drugs; with the majority affected by alcohol. The median age of these victims was 33 years with a range of 5 to 78 years. (32) Of the 90 cases only four involved female victims.

Several statements on the introduction of legislation across Australia have suggested that 'one punch' legislation will make people think about throwing that punch that might kill, however social science research indicates a relationship between alcohol and violence, (33) and between alcohol and lack of thinking. (34) Such research indicates that this aspect of thinking before throwing a punch is unlikely to be addressed by the legislation as drunken young men do not think about the consequences of their actions. However, the culture of male violence needs to be addressed at a societal level (35) and cultural change takes time, (36) sometimes over several generations unless hastened by specific action. Therefore, the deterrence effect of the legislation is at the very least doubtful.

Recent concerns have emerged that the 'one punch' laws are simply not effective. (37) Presently, the evidence and cases from WA demonstrate that the provision of unlawful assault causing death has not achieved what was intended by Parliament. As is demonstrated in the social analysis of the WA cases included in this paper, the majority of cases involving the offence of unlawful assault causing death occur in very different environments to the believed or expected environment of the entertainment sector with young men fuelled by alcohol. (38) Another concern is the pattern of sentencing in the 'one punch' cases. The case law demonstrates that the sentences imposed are significantly less than what the provision can provide. This is surprising considering section 281 is void of several legal considerations, thus increasing the severity of the offence and the likelihood of convictions.

III HISTORY OF THE 'ONE PUNCH' LAWS...

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