Academic journal article University of Western Sydney Law Review

A Legal and Social Analysis of 'One Punch' Cases in Western Australia

Academic journal article University of Western Sydney Law Review

A Legal and Social Analysis of 'One Punch' Cases in Western Australia

Article excerpt

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. …

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