A Wollongong District Court judge said the NSW Government’s mandatory sentencing laws for drunken violence could create a “staggering injustice” if applied to cases previously treated as manslaughter.
Judge Paul Conlon made the comment after a Scarborough father was acquitted of manslaughter after killing his cousin in a drunken, one-blow altercation outside a Woonona restaurant in January 2012.
Dr Julia Quilter, Senior Lecturer in the School of Law, who was a sought after media commentator following the Thomas Kelly case last year (the Sydney teenager killed by a one-punch blow to the head) was featured on ABC Radio Illawarra this week following the latest District Court case.
Dr Quilter has written extensively on the topic including an article for the International Journal of Crime, Justice & Social Democracy and an opinion piece for The Conversation about the one-punch law and why it is not the answer.
In reference to the latest case, Judge Conlon said that had the defendant been found guilty and the controversial laws applied to the case, it would have “presented a most difficult sentencing exercise for the court”.
“If it had applied to these facts and circumstances, there was clear evidence in this case of intoxication and therefore, the court would have been left with no alternative but than to impose . . . the standard minimum term of eight years. That, in my view, would have produced a staggering injustice because the penalty would simply not have been warranted in the particular circumstances of this case.”
Dr Quilter told ABC Radio Illawarra’s Nick Rheinberger that the judge’s comments may have very powerful political implications.
She said it was important to note that the defendant in this particular District Court case was not charged under the new one-punch law.
“He was charged under the old manslaughter laws … but if he had been convicted under the new law, the judge would have no discretion other than to impose the minimum – and that’s a minimum, not the maximum – a minimum of eight years imprisonment.”
Dr Quilter stressed that the only defence that a defendant could run in a one punch situation under the new law is self defence.
However, she said not enough attention has been paid to how juries will react in cases where they have to decide the fate of a person who faces a mandatory sentence of 8 years if convicted. It may result in jury nullification.
“This is basically where even though a properly instructed jury where the elements are likely to be proven, decide among themselves out of purview of the public that this is actually not an acceptable verdict on this particular case.”
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