Assault Causing Death (One Punch Laws)
Assault causing death is one of the few criminal offences in New South Wales to which a mandatory minimum sentence applies. The offence was introduced in 2013 under section 25A of the Crimes Act 1900 as part of a suite of “one punch laws” following a number of highly publicised “one punch” deaths. Mandatory minimum terms of imprisonment apply for persons who cause the death of another person in particular circumstances. This article outlines the offence of assault causing death in New South Wales.
What Is Assault Causing Death?
For a person to be found guilty of this offence, the court must be satisfied of each of the following elements beyond a reasonable doubt:
- The accused assaulted another person by intentionally hitting them with any part of the accused’s body or an object held by the accused; and
- The assault was not authorised or excused by law (for example the accused was not acting in self-defence); and
- The assault caused the death of the other person – either from the injuries directly received from the assault or as a consequence of hitting the ground or another object as a result the assault.
Should a person plead guilty or be found guilty of an assault causing death, they will be liable to a maximum term of imprisonment for 20 years. However, if at the time of committing the offence the accused was aged 18 or older and was intoxicated (and the intoxication was self-induced), the maximum penalty increases to 25 years. If a person commits the offence of assault occasioning death whilst intoxicated they face a mandatory minimum non-parole period of eight years.
The definition of “intoxicated” is not clear from the legislation, but the legislation indicates that someone with a blood alcohol level of 0.15g/L would be conclusively regarded as being intoxicated.
Mandatory Minimum Sentence
A mandatory minimum sentence removes the discretion of the court to set the parole and non-parole periods during sentencing. This means that factors such as whether the accused has a prior criminal history, whether there was provocation by the victim and other circumstances relating to the accused cannot serve to reduce the parole and non-parole period.
The stipulated non-parole period for an offence of assault causing death in circumstances of intoxication is 8 years. This means that for an offence of assault causing death, the minimum sentence an accused can receive is a 16-year total sentence, with 8 years in full-time custody.
Which Court Will Hear The Matter?
Assault causing death is a strictly indictable offence, meaning that it must be finalised in the District Court.
It is a defence to assault causing death if:
- the accused committed the assault in self-defence;
- the assault was an accident (not intentional);
- the accused was acting under duress;
- the accused was too young and insufficiently developed to understand the nature of their actions (if the accused was under 14).
It is a defence to assault causing death when intoxicated if the accused can show:
- the intoxication was not self-induced – for example, the accused did not knowingly consume alcohol and/or illicit substances that caused the intoxication (drink spiking etc); or
- the accused was suffering from a significant cognitive impairment at the time.
A Controversial Law
The introduction of the assault causing death laws has been controversial, in particular, due to the mandatory minimum sentences, which remove the court’s discretion to impose a sentence that is appropriate in all of the circumstances.
The removal of this discretion has been both celebrated and criticised, as it prohibits courts from imposing more lenient sentences where the court deems this is appropriate in the circumstances.
The inflexibility of the one punch legislation can be illustrated with a couple of examples. In one scenario, an 18-year-old with no criminal history goes out on a pub crawl with his girlfriend and they both become intoxicated. During the evening the young man meets a stranger on the street who verbally harasses him and his girlfriend. The stranger follows the couple and continues to launch aggressive verbal insults. The young male in response punches the stranger once, causing him to fall back and fatally strike his head on the concrete.
In a second scenario, a 50-year-old man with ongoing alcohol addiction and a string of prior convictions for violent offences strikes a young man in the head at the train station without provocation, causing his death. The legislation requires that the young man in the first scenario receive the same minimum period of imprisonment as the man in the second scenario.
Several other implications flow from this mandatory minimum penalty. One of these is that there is little motivation for most defendants to plead guilty, as courts do not have the discretion to impose a more lenient sentence than that stipulated as the mandatory minimum. A discount for an early appropriate guilty plea is therefore unlikely to be possible.
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