Sentencing Amendment (Coward's
Punch Manslaughter and Other
Matters) Bill 2014
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1—PRELIMINARY
Clause 1
sets out the purposes of the Bill. The Bill amends provisions in
the Crimes Act 1958 to provide that certain acts are taken to be
dangerous acts for the purposes of unlawful and dangerous act
manslaughter. The Bill also amends the Sentencing Act 1991 to
provide statutory minimum sentences of 10 years imprisonment
for manslaughter in certain circumstances, and to require the DPP
to give notice of the prosecution's intention to seek the statutory
minimum sentence in manslaughter trials.
Clause 2
provides for the commencement of the Bill.
Subclause (1) provides that Part 1 and Part 5 come into operation
on the day after the day on which the Act receives Royal Assent.
Subclause (2) provides for the commencement of Division 2 of
Part 3. That Division makes amendments to new sections 9B
and 9C of the Sentencing Act 1991, which will be inserted by
Division 1 of Part 3. Those amendments are required as a
consequence of amendments that are intended to be made to the
Crimes Act 1958 by the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014. If section 6 of that Act comes
into operation on the same day that Division 1 of Part 3 of the
Bill comes into operation, Division 2 comes into operation on
that day. Otherwise, Division 2 comes into operation on the later
of the day on which Division 1 comes into operation, and the day
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BILL LA INTRODUCTION 19/8/2014
on which section 6 of the Crimes Amendment (Abolition of
Defensive Homicide) Act 2014, comes into operation.
Subclause (3) provides that the remaining provisions come
into operation on a day or days to be proclaimed, subject to
subclause (4).
Subclause (4) provides that if a provision referred to in
subclause (3) does not come into operation before 1 November
2014, it comes into operation on that day.
PART 2—AMENDMENT OF CRIMES ACT 1958
Clause 3
inserts new section 4A into the Crimes Act 1958 to provide that
certain acts are taken to be dangerous acts for the purposes of
unlawful and dangerous act manslaughter.
New section 4A applies to a single punch or strike that is
delivered to any part of a person's head or neck that by itself
causes an injury to the head or neck. Injury takes its meaning
from section 15 of the Crimes Act 1958. This will mean that the
punch or strike must be delivered with sufficient force to cause
an injury to the victim. This will preclude acts such as a slight
push or gentle slap from fitting within the new section.
New section 4A(2) provides that a single punch or strike, as
described in new section 4A(1), is taken to be a dangerous act.
This will mean that in cases where the prosecution must prove
that the unlawful act which caused the victim's death was
dangerous, the prosecution may rely on new section 4A to assist
in proving this element of the offence.
New section 4A(3) provides that it is irrelevant that the single
punch or strike is one of a series of punches or strikes.
In situations where there are numerous punches or strikes, the
prosecution may rely on new section 4A(2) if it can identify a
single punch or strike as the dangerous act that caused the
victim's death. If it cannot, the common law test of
dangerousness will be used to determine whether the act that
caused the victim's death was dangerous. This test is whether a
reasonable person in the position of the accused would have
realised that the conduct would expose the victim to an
appreciable risk of serious injury—Wilson v The Queen
(1992) 174 CLR 313.
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New section 4A(4) provides that a single punch or strike may be
the cause of death even if the injury that caused the victim's death
resulted from an impact to the person's head, neck or another part
of the person's body, that was caused by the punch or strike.
This will simplify the issue of causation in certain cases. As the
example under new section 4A(4) illustrates, a person may cause
another person's death where the person punches the other person
to the head, and the other person falls as a result of the force of
the punch, hits their head on the road, and dies from the injury
resulting from their head hitting the road.
New section 4A(5) provides that new section 4A does not limit
the circumstances in which a punch or strike may be an unlawful
and dangerous act for the purposes of unlawful and dangerous act
manslaughter. The common law test for dangerousness continues
to apply where the prosecution has not proved that an act was
dangerous under new section 4A(2). New section 4A(5) means
that nothing in new section 4A(2) changes how that test will be
applied.
New section 4A(6) defines strike to mean a strike delivered with
any part of the body. Examples of a strike include a kick, an
elbow, a martial arts strike, or a hit with the forearm.
New subsection (6) also inserts two notes that cross-refer to the
request for directions process under sections 10 and 11 of the
Jury Directions Act 2013. The first note states that defence
counsel must indicate whether or not it is in issue that the punch
or strike was a dangerous act, or that the punch or strike caused
the person's death. This process will identify those cases where a
direction may need to be given about these issues. The second
note states that the prosecution and defence counsel must each
request that the trial judge give, or not give, directions about the
matters in issue, including whether the punch or strike was a
dangerous act, or whether the punch or strike caused the person's
death. This allows for flexibility in deciding whether the
prosecution case relies on either new section 4A(2), the common
law, or both. For example, if one offender punches the victim
from behind, which causes the victim to fall to the ground, and
then while on the ground, another offender stomps on the victim's
head, there may be an issue as to which act caused the victim's
death. In these circumstances, the prosecution may prefer to rely
only on the common law.
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Clause 4
inserts notes at the foot of section 5 of the Crimes Act 1958.
Section 5 provides the punishment for manslaughter. The new
notes cross-refer to the new statutory minimum sentence regime
for manslaughter under new sections 9B and 9C of the
Sentencing Act 1991. The notes also cross-refer to the special
reasons provided for in section 10A of the Sentencing Act 1991,
because that section applies to the new statutory minimum
sentences provided for by new sections 9B and 9C. Note 3 refers
to the notice requirements on the prosecution in new section 9A
of the Sentencing Act 1991.
Clause 5
provides for transitional matters by inserting new section 624
into the Crimes Act 1958.
New section 624(1) provides that new section 4A of the Crimes
Act 1958 only applies to an offence alleged to have been
committed on or after the commencement of clause 3 of this Bill.
New section 624(2) provides that if an offence is alleged to have
been committed between 2 dates, one before and one after the
commencement of clause 3 of this Bill, it is alleged to have been
committed before that commencement.
PART 3—AMENDMENT OF SENTENCING ACT 1991
Clause 6
inserts new sections 9A, 9B and 9C into the Sentencing Act
1991. These provisions relate to sentencing an accused who is
found guilty of manslaughter in circumstances of gross violence
(new section 9B), or manslaughter by a single punch or strike
(new section 9C).
New section 9A sets out the process that the DPP must follow to
give notice of the prosecution's intention to seek the imposition
of a statutory minimum sentence under new section 9B or 9C.
The notice ensures procedural fairness to the accused by
providing sufficient notice of the prosecution's intent to prove the
factors outlined in new section 9B or 9C prior to entering a plea
of guilty, or prior to trial. If the notice requirements are not
complied with, the statutory minimum sentence regime cannot
apply.
New section 9A applies both to a committal proceeding and trial
for an offence of murder or manslaughter. At the end of a
committal proceeding, the accused is asked whether he or she
pleads guilty or not guilty to the offence. New section 9A
enables the prosecution to give notice prior to the accused
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entering a plea, as this information may be relevant to the plea
that the accused decides to enter. New section 9A(1) includes a
note explaining that the provision refers to both murder and
manslaughter because manslaughter is available as an alternative
verdict in a trial for murder. The prosecution's case may be that
the accused is guilty of murder, but if the jury finds the accused
not guilty of murder, that the accused is guilty of manslaughter.
If the jury does find the accused not guilty of murder but guilty of
manslaughter, the giving of notice by the prosecution in
accordance with this section will mean that the prosecution may
seek the imposition of a statutory minimum sentence for the
offence of manslaughter in accordance with new sections 9B
or 9C.
New section 9A(2) provides that the DPP may give notice of the
prosecution's intention to seek the statutory minimum sentence
under new section 9B or 9C. If the prosecution does not intend
to seek the statutory minimum sentence, the prosecution does not
need to give any notice.
If the DPP decides to give notice, new sections 9A(3) to (9) will
apply. New section 9A(3) requires the DPP to indicate whether it
intends to prove that the manslaughter was in circumstances of
gross violence (under new section 9B) or was manslaughter by
single punch or strike (under new section 9C).
New section 9A(4) provides that the DPP must serve the notice
on the accused by ordinary service and file a copy with the court.
New section 9A(5) provides when notice must be given.
The DPP must give the notice to the accused—

in a committal proceeding, before the accused is
committed for trial; or

in a trial, on or before the prosecution opening summary
is filed and served, unless the accused is to be arraigned
before a prosecution opening summary has been filed
and served, in which case the notice must be given at
least 7 days before the arraignment.
New section 9A(6) provides that the trial court may abridge the
time for service of the notice prior to arraignment if it considers
that it is in the interests of justice to do so. There may be
occasions where the prosecution and accused negotiate a plea
agreement that includes an understanding that the prosecution
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will seek the statutory minimum sentence under new section 9B
or 9C. In these circumstances, a full 7 days notice may not be
necessary and could unduly delay the plea proceedings.
New section 9A(6) is intended to provide flexibility in these
circumstances.
New section 9A(7) provides that supporting material is not
necessary to make an order abridging time under new
section 9A(6). A similar provision is contained in section 247
of the Criminal Procedure Act 2009.
New section 9A(8) allows the DPP to revoke a notice at any time
by serving a notice of revocation by ordinary service and filing a
copy with the trial court. This will provide the DPP with the
flexibility to choose not to seek the statutory minimum sentence,
where previously the DPP's intention was to seek the statutory
minimum sentence.
New section 9A(9) provides definitions for filing and serving
notice under the section. Notice must be filed with the court in
which the proceeding is, or is to be, held. The definition in the
Criminal Procedure Act 2009 of ordinary service applies to
service of the notice.
Sentencing for manslaughter in circumstances of gross violence
New section 9B requires a custodial sentence to be imposed for
manslaughter committed in circumstances of gross violence.
This requirement applies if a notice has been served and filed
under new section 9A. However, the requirement does not apply
if the court finds under section 10A that a special reason exists.
New section 9B(1) applies to the sentencing of an offender for
manslaughter if the prosecution has filed and served notice under
new section 9A, the notice specifies that it relates to section 9B
and the notice has not been revoked. If the prosecution has not
complied with these notice requirements, the sentencing court
must sentence the offender in the usual way.
New section 9B(2) provides that in sentencing an offender for an
offence of manslaughter, the court must impose a non-parole
period of not less than 10 years unless the court finds under
section 10A that a special reason exists. (See the discussion
under clause 8 in relation to special reasons.) The statutory
minimum sentence must be applied whether after a trial or on
appeal against sentence.
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Section 11 of the Sentencing Act 1991 applies in such cases.
For example, the minimum non-parole period of ten years must
be at least 6 months less than the term of the sentence, as
required by section 11(3) of the Sentencing Act 1991. That is,
the head sentence or total effective sentence must be a sentence
of imprisonment for at least ten years and six months. This does
not prevent the court from imposing a term of imprisonment
longer than the statutory minimum sentence.
New section 9B(2) only applies to adult offenders (see new
section 9B(4)), and only if the court is satisfied of certain
aggravating factors beyond reasonable doubt. These factors are
set out in new section 9B(3).
The first requirement in all cases is that the offender acted in
company with 2 or more other persons in causing the victim's
death, or participated in a joint criminal enterprise with 2 or more
other persons in causing the victim's death. The statutory
minimum will apply if the prosecution also proves that that the
offender—

planned in advance to have and to use an offensive
weapon or firearm and used that weapon or firearm to
cause the victim's death;

planned in advance to engage in the conduct that caused
the victim's death and a reasonable person would have
foreseen that the conduct would be likely to result in
death; or

caused two or more serious injuries to the victim
during a sustained or prolonged attack on the victim.
The Crimes Act 1958 definition of serious injury
includes an injury that endangers life or that is
substantial and protracted.
This limits the statutory minimum sentence to offenders who
engage in group violence involving 3 or more persons, and
whose involvement satisfies one of the three listed factors.
For example, an offender who engaged in a joint criminal
enterprise and is liable for the offence of manslaughter due to his
or her involvement, will not satisfy the other factors unless he or
she planned in advance and either used the weapon or foresaw
the likelihood of death (as the case may be) or personally caused
two or more serious injuries to the victim.
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The factors are based on those contained in the gross violence
causing serious injury offences. However, there are important
differences. First, there is the threshold factor of 3 or more
persons being involved in the offending which is required in all
cases for the statutory minimum sentence to apply. Second, the
factor in new section 9B(3)(b)(i) is essentially the same as the
factors in sections 15A(2)(d) and 15B(2)(d) of the Crimes Act
1958 but does not include an imitation firearm. Third, new
section 9B(3)(b)(ii) is modelled on section 15A(2)(a)(iii)
and 15B(2)(a)(iii) of the Crimes Act 1958 but the
"foreseeability" of the offender has been modified from
serious injury to death to capture the most serious forms of
dangerous conduct. Finally, new section 9B(3)(b)(iii) differs
from the gross violence factors on incapacitation in
sections 15A(2)(e) and (f) and 15B(2)(e) and (f) of the Crimes
Act 1958. In many cases, a person who is killed will have
been incapacitated before they died. Accordingly, new
section 9B(3)(b)(iii) focuses on causing two or more serious
injuries to the victim in a sustained or prolonged attack.
As referred to above, the statutory minimum sentence does
not apply to a person who is under the age of 18 years at the
time of the commission of the offence of manslaughter
(new section 9B(4)).
New section 9B(5) applies the existing definitions in section 15
of the Crimes Act 1958 of firearm, offensive weapon and
serious injury.
Sentencing for manslaughter involving a single punch or strike
New section 9C requires a custodial sentence to be imposed for
manslaughter committed in circumstances involving a single
punch or strike unless a special reason applies. (See the
discussion under clause 8 in relation to special reasons.) In many
respects, this section mirrors new section 9B, except in relation to
the aggravating factors (see new section 9C(3) to (5) and the
scope of the exclusions (see new section 9C(6)(a)).
New section 9C(1) applies to the sentencing of an offender for
manslaughter if the prosecution has complied with the necessary
notice requirements. If the prosecution has not complied with the
notice requirements, the sentencing court must sentence the
offender in the usual way.
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New section 9C(2) provides that in sentencing an offender for an
offence of manslaughter, the court must impose a non-parole
period of not less than 10 years unless the court finds under
section 10A that a special reason exists. The statutory minimum
sentence must be applied whether after a trial or on appeal.
New section 9C(2) only applies if the court is satisfied of certain
aggravating factors beyond reasonable doubt. These factors are
set out in new section 9C(3), and are explained further in new
section 9C(4) and (5).
New section 9C(3) provides that the court must be satisfied
that—

the victim's death was caused by a punch or strike to
which new section 4A(2) of the Crimes Act 1958
applies (see clause 3); and

the offender intended to punch or strike the victim's
head or neck; and

the victim was not expecting to be punched or struck by
the offender; and

the offender knew that the victim was not expecting, or
was probably not expecting, to be punched or struck by
the offender.
The court may be satisfied that a victim was not expecting to be
punched or struck by the offender, and that the offender knew
that the victim was not expecting, or probably not expecting to be
punched or struck by the offender, even if there was an earlier
confrontation between the victim and the offender or any other
person (new section 9C(4)). This means that an earlier scuffle in
a venue, or an earlier oral exchange or threat, will not preclude
the sentencing court from finding that the victim was not
expecting to be punched or struck by the offender. This provides
flexibility for the court to assess the individual circumstances of
each case.
In addition, new section 9C(5) provides that a warning given to
the victim by the offender immediately before delivering the
punch or strike, does not mean that the victim was expecting to
be punched or struck by the offender. The example to new
section 9C(5) illustrates that where a warning is so close in time
to the delivery of the punch or strike, it cannot be said that the
victim was expecting to be punched or struck by the offender.
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This provision applies where an offender, without any warning,
hits someone from behind and to the back of their head, as well
as other scenarios where an offender fatally assaults a person
(such as, where the offender sprints up to someone from the side,
and punches their head).
New section 9C(6) provides that the courts cannot impose the
statutory minimum sentence on a person under the age of 18, or
on a person who aids, abets, counsels or procures the commission
of the offence. A similar provision is contained in section 10(2)
of the Sentencing Act 1991, in relation to statutory minimums
for certain gross violence offences. Section 323 of the Crimes
Act 1958 provides that a person who aids, abets, counsels or
procures the commission of an indictable offence may be tried
and punished as a principal offender. This exclusion recognises
the wide range of culpability that may arise in the context of
single punch or strike manslaughter, by ensuring that the
sentencing court is not required to impose the statutory minimum
sentence in such cases.
New section 9C(7) provides that strike has the meaning given by
new section 4A of the Crimes Act 1958 (see clause 3 of this
Bill).
Clause 7
amends the heading to section 10 of the Sentencing Act 1991 so
that it refers specifically to "causing serious injury in
circumstances of gross violence", rather than referring generally
to "gross violence offences". This amendment is required due to
new section 9B, which relates to custodial sentences for
manslaughter in circumstances of gross violence.
Clause 8
amends section 10A of the Sentencing Act 1991.
New sections 9B and 9C provide that a sentencing court must
impose the statutory minimum sentence unless it finds under
section 10A that a special reason exists. Only one special reason
is required to displace the statutory minimum sentence. It is open
to the court to find more than one special reason exists.
Section 10A provides that a court may find that a special reason
exists if—

the offender has assisted, or has undertaken to assist,
law enforcement authorities;
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
the offender is aged between 18–20 years at the time of
the offence and proves, on the balance of probabilities,
that he or she has a particular psychosocial immaturity
that resulted in a substantially diminished ability to
regulate his or her behaviour in comparison with the
norm for persons of that age;

the offender proves, on the balance of probabilities, that
he or she had impaired mental functioning that is
causally linked to the offending and substantially
reduces their culpability, or that would result in them
being subject to significantly more than the ordinary
burden or risks of imprisonment;

the court proposes to make a hospital security order or a
residential treatment order in respect of the offender; or

there are substantial and compelling reasons that justify
doing so.
For example, the sentencing court may find that there are
substantial and compelling reasons for not imposing the statutory
minimum sentence for manslaughter involving a single punch or
strike, if the case is at the very low end of culpability for that type
of offending. When considering whether the circumstances are
substantial and compelling, justifying a departure from the
statutory minimum sentence, the court must have regard to two
specific matters, set out in section 10A(3), as amended by this
clause. First, the court must consider Parliament's intention that
the sentence for such manslaughters should ordinarily be a prison
sentence with a minimum non-parole period of 10 years.
Secondly, the court must consider the cumulative impact of the
circumstances of the case. The cumulative impact of the
circumstances must be balanced against the presumption that the
statutory minimum sentence should ordinarily apply.
Subclause (1) inserts a new heading to section 10A, to reflect that
that section will apply to special reasons relevant to imposing
minimum non-parole periods generally (not just for gross
violence offences).
Subclause (2) amends section 10A(2) of the Sentencing Act
1991 to refer to new sections 9B and 9C, as well as section 10.
This reflects that special reasons may exist in relation to
sentencing under each of these provisions.
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Subclause (3) inserts new section 10A(3)(aa) to reflect
Parliament's intention that a non-parole period of 10 years should
ordinarily be fixed in sentencing an offender for manslaughter in
circumstances of gross violence or involving a single strike or
punch. This is relevant to the "substantial and compelling
reasons" test referred to above.
Clause 9
inserts new section 152 into the Sentencing Act 1991.
New section 152(1) provides that new sections 9B and 9C only
apply to the sentencing of an offender for an offence alleged to
have been committed on or after the commencement of
Division 1 of Part 3 of this Bill. New section 152(2) provides
that if an offence is alleged to have been committed between
2 dates, one before and one after the commencement of
Division 1 of Part 3 of this Bill, it is alleged to have been
committed before that commencement.
Clause 10 substitutes a new section 9B(3)(a)(ii) of the Sentencing Act 1991
to reflect the changes to the laws of complicity inserted into
Subdivision (1) of Division 1 of Part II of the Crimes Act 1958
by the Crimes Amendment (Abolition of Defensive Homicide)
Act 2014. Rather than referring to a "joint criminal enterprise",
the provision will refer to the offender entering into an
agreement, arrangement of understanding with 2 or more persons
to engage in conduct that resulted in the victim's death.
Clause 11 substitutes a new section 9C(6)(a) of the Sentencing Act 1991 to
reflect the changes to the laws of complicity inserted into
Subdivision (1) of Division 1 of Part II of the Crimes Act 1958
by the Crimes Amendment (Abolition of Defensive Homicide)
Act 2014. Rather than referring to "aids, abets, counsels or
procures", the provision will refer to the offender's involvement
in the commission of the offence within the meaning of
section 323(1)(a) and (b) of the Crimes Act 1958. This clause
also repeals the note at the foot of section 9C(6)(a) as it will no
longer be required once the section is amended.
PART 4—AMENDMENT OF OTHER ACTS
Clause 12 amends section 10 of the Sentencing Amendment (Baseline
Sentences) Act 2014 to substitute "155" for "152". This will
ensure that transitional provisions in the Sentencing Act 1991
are correctly numbered.
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Clause 13 repeals section 5(1) of the Sentencing Amendment (Emergency
Workers) Act 2014 (subclause (1)). Subclause (2) amends
section 10A(2) of the Sentencing Act 1991, to refer to each
section to which special reasons may apply, being new
sections 9B, 9C, 10 and 10AA. New section 10AA is being
inserted by the Sentencing Amendment (Emergency Workers)
Act 2014. Subclauses (3) and (4) amend section 12 of the
Sentencing Amendment (Emergency Workers) Act 2014 to
substitute "625" for "623", to ensure that the transitional
provisions in the Crimes Act 1958 are correctly numbered.
PART 5—REPEAL OF AMENDING ACT
Clause 14 provides for the repeal of this amending Act on 1 November
2015. The repeal of this Act will not affect the continuing
operation of the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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