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Mandatory minimum penalties are unusual in New South Wales. "Assault Causing Death" is one of the few offences where such penalties apply.
It is an offence that was introduced as part of the suite of "one punch laws" introduced in 2013. It imposes a mandatory minimum penalty of imprisonment for persons that cause of death of another person in particular circumstances.
The elements of this particular offence are as follows:
A person prosecuted for "Assault Causing Death" is liable to imprisonment for 20 years. This increases to 25 years where the assailant is intoxicated.
This is to be contrasted with manslaughter, which carries a maximum penalty of 25 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 regarded as being intoxicated.
The legislation goes on to say that if a person commits the offence of "Assault Occasioning Death" whilst intoxicated they face a mandatory minimum non-parole period of eight years. The non-parole period is the minimum time that an offender must serve in custody before they can apply for parole
This is significant because the most manslaughter penalties lie between three and six years non-parole.
A close examination of the statistics shows that, of the 189 sentences for the offence of manslaughter between July 2006 and June 2013, only 15 of them were of eight years or more.
In other words, this law would on average impose a heavier penalty for "Assault Causing Death" than would have been imposed had the offender been prosecuted for the offence of manslaughter.
Several other implications flow from this mandatory minimum penalty. These include there being little motivation for most defendants to plead guilty.
The law allows a discount of 25% on sentence if a defendant pleads guilty to the offence they have committed. If there is a mandatory minimum penalty, that discount on sentence may not apply.
It remains to be seen precisely how this new section is applied and the way in which the Courts will treat people who are being prosecuted for the offence of "Assault Occasioning Death". What is clear is that any person so prosecuted will require a very high quality of representation to ensure that their interests are protected in what is not only a very technical, difficult area of law but also an area of law that tends to attract a large amount of media coverage.
If you have been charged or if you suspect you may be it is essential that you contact us as soon as possible so that you can be properly advised.
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.