Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014

Authorised by the Chief Parliamentary Counsel Authorised Version i Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF CRIMES ACT 1958 4 3 New section 4A inserted 4 4A Manslaughter—single punch or strike taken to be dangerous act 4 4 Punishment of manslaughter 5 5 New section 624 inserted 6 624 Transitional provisions—Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 6 PART 3—AMENDMENT OF SENTENCING ACT 1991 7 Division 1—Principal amendments 7 6 New sections 9A, 9B and 9C inserted 7 9A Notice of intention to seek statutory minimum sentence for manslaughter 7 9B Custodial sentence must be imposed for manslaughter in circumstances of gross violence 9 9C Custodial sentence must be imposed for manslaughter by single punch or strike 11 7 Custodial sentence must be imposed for gross violence offences 13 8 Special reasons relevant to sentencing for gross violence offences 13 9 New section 152 inserted 14 152 Transitional provisions—Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 14 -- 1 of 20 -- Section Page ii Authorised by the Chief Parliamentary Counsel Division 2—Amendments consequential on commencement of Crimes Amendment (Abolition of Defensive Homicide) Act 2014 14 10 Custodial sentence must be imposed for manslaughter in circumstances of gross violence 14 11 Custodial sentence must be imposed for manslaughter by single punch or strike 15 PART 4—AMENDMENT OF OTHER ACTS 16 12 Sentencing Amendment (Baseline Sentences) Act 2014 16 13 Sentencing Amendment (Emergency Workers) Act 2014 16 PART 5—REPEAL OF AMENDING ACT 17 14 Repeal of amending Act 17 ═══════════════ ENDNOTES 18 -- 2 of 20 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 † No. 72 of 2014 [Assented to 30 September 2014] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are— (a) to amend the Crimes Act 1958 to provide that certain acts are to be taken to be dangerous acts for the purposes of the law relating to manslaughter by an unlawful and dangerous act; and Victoria -- 3 of 20 -- Part 1—Preliminary Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 2 Authorised by the Chief Parliamentary Counsel (b) to amend the Sentencing Act 1991— (i) to provide that, in certain circumstances, a sentence of imprisonment should ordinarily be imposed for manslaughter and a non- parole period of not less than 10 years should ordinarily be fixed; and (ii) to provide for the DPP to give notice of the prosecution's intention to seek the imposition of a statutory minimum sentence in a trial for manslaughter. 2 Commencement (1) This Part and Part 5 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Division 2 of Part 3 comes into operation on— (a) if section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation on the same day that Division 1 of Part 3 of this Act comes into operation, on that day; or (b) otherwise, on the later of— (i) the day on which section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation; and (ii) the day on which Division 1 of Part 3 comes into operation. (3) Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed. s. 2 -- 4 of 20 -- Part 1—Preliminary Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 3 Authorised by the Chief Parliamentary Counsel (4) If a provision referred to in subsection (3) does not come into operation before 1 November 2014, it comes into operation on that day. __________________ s. 2 -- 5 of 20 -- Part 2—Amendment of Crimes Act 1958 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 4 Authorised by the Chief Parliamentary Counsel PART 2—AMENDMENT OF CRIMES ACT 1958 3 New section 4A inserted Before section 5 of the Crimes Act 1958 insert— "4A Manslaughter—single punch or strike taken to be dangerous act (1) This section applies to a single punch or strike that— (a) is delivered to any part of a person's head or neck; and (b) by itself causes an injury to the head or neck. (2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act. (3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes. (4) A single punch or strike may be the cause of a person's death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person's head or neck but another injury resulting from an impact to the person's head or neck, or to another part of the person's body, caused by the punch or strike. Example If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death. (5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to See: Act No. 6231. Reprint No. 24 as at 1 July 2013 and amending Act Nos 16/2004, 27/2011, 60/2013, 70/2013, 72/2013, 77/2013, 7/2014, 8/2014, 17/2014, 25/2014, 26/2014, 36/2014 and 37/2014. LawToday: www. legislation. vic.gov.au s. 3 -- 6 of 20 -- Part 2—Amendment of Crimes Act 1958 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 5 Authorised by the Chief Parliamentary Counsel manslaughter by an unlawful and dangerous act. (6) In this section— injury has the same meaning as in Subdivision (4); strike means a strike delivered with any part of the body. Notes 1 Under section 10 of the Jury Directions Act 2013, after the close of all evidence and before the closing address of the prosecution, defence counsel must inform the trial judge whether each element of the offence is or is not in issue, including— • whether the punch or strike was a dangerous act; and • whether the punch or strike caused the person's death. 2 Under section 11 of the Jury Directions Act 2013, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of the matters in issue, which may include— • whether the punch or strike was a dangerous act; and • whether the punch or strike caused the person's death.". 4 Punishment of manslaughter At the foot of section 5 of the Crimes Act 1958 insert— "Notes 1 Sections 9B and 9C of the Sentencing Act 1991 require that, in certain circumstances, a term of imprisonment be imposed for manslaughter and a non- parole period of not less than 10 years be fixed under section 11 of that Act unless the court finds under section 10A of that Act that a special reason exists. s. 4 -- 7 of 20 -- Part 2—Amendment of Crimes Act 1958 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 6 Authorised by the Chief Parliamentary Counsel 2 If a court makes a finding under section 10A of the Sentencing Act 1991 that a special reason exists, the requirements of section 9B or 9C of that Act do not apply and the court has full sentencing discretion. 3 Sections 9B and 9C of the Sentencing Act 1991 do not apply unless the DPP serves and files a notice under section 9A of that Act. 5 New section 624 inserted At the end of Part 7 of the Crimes Act 1958 insert— "624 Transitional provisions—Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 (1) Section 4A only applies to an offence alleged to have been committed on or after the commencement of section 3 of the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014. (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of section 3 of the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014, it is alleged to have been committed before that commencement.". __________________ s. 5 -- 8 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 7 Authorised by the Chief Parliamentary Counsel PART 3—AMENDMENT OF SENTENCING ACT 1991 Division 1—Principal amendments 6 New sections 9A, 9B and 9C inserted After section 9 of the Sentencing Act 1991 insert— "9A Notice of intention to seek statutory minimum sentence for manslaughter (1) This section applies to— (a) a committal proceeding for an offence of murder or manslaughter; and (b) a trial for an offence of murder or manslaughter. Note Subsection (1) refers to both murder and manslaughter as under section 421 of the Crimes Act 1958 on a trial for an offence of murder an accused may be found guilty of manslaughter. (2) The DPP may give notice that, if the accused is found guilty of the offence of manslaughter, the prosecution intends to seek the imposition of a sentence in accordance with section 9B or 9C. (3) The DPP must specify in the notice whether the notice relates to either section 9B or 9C. (4) The DPP must give notice by— (a) serving the notice on the accused by ordinary service; and (b) filing a copy of the notice. (5) The DPP must give the notice— (a) for a notice given in relation to a committal proceeding, before the Magistrates' Court commits the accused for trial in accordance with section 144 See: Act No. 49/1991. Reprint No. 16 as at 1 July 2014 and amending Act Nos 32/2013, 77/2013, 15/2014, 17/2014, 37/2014 and 47/2014. LawToday: www. legislation. vic.gov.au s. 6 -- 9 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 8 Authorised by the Chief Parliamentary Counsel of the Criminal Procedure Act 2009; or (b) for a notice given in relation to a trial— (i) on or before the day on which the DPP serves on the accused and files a summary of the prosecution opening in accordance with section 182 of the Criminal Procedure Act 2009; or (ii) if the accused is to be arraigned for the offence without such a summary having been served and filed, at least 7 days before the arraignment. (6) The court in which the accused is to be tried, by order, may abridge the period before arraignment referred to in subsection (5)(b)(ii) if it considers that it is in the interests of justice to do so. (7) Unless the court referred to in subsection (6) otherwise orders, no material in support of an order under that subsection need be filed. (8) The DPP may revoke a notice at any time by— (a) serving a notice of revocation on the accused by ordinary service; and (b) filing a copy of the notice. (9) In this section— filing means— (a) in relation to a committal proceeding, filing with the registrar of the venue of the Magistrates' Court at which the s. 6 -- 10 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 9 Authorised by the Chief Parliamentary Counsel committal proceeding is, or is to be, held; or (b) in relation to a trial, filing in the court in which the accused is to be tried; ordinary service has the same meaning as in the Criminal Procedure Act 2009. 9B Custodial sentence must be imposed for manslaughter in circumstances of gross violence (1) This section applies to the sentencing of an offender (whether on appeal or otherwise) for an offence of manslaughter if— (a) the prosecution served and filed a notice under section 9A in relation to the offence; and (b) the notice specifies, in accordance with section 9A(3), that it relates to this section; and (c) the notice has not been revoked under section 9A(8). (2) In sentencing the offender, the court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists. Note Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence. s. 6 -- 11 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 10 Authorised by the Chief Parliamentary Counsel (3) Subsection (2) applies to the court in sentencing the offender only if— (a) the court is satisfied beyond reasonable doubt that— (i) the offender in company with 2 or more other persons caused the victim's death; or (ii) the offender participated in a joint criminal enterprise with 2 or more other persons in causing the victim's death; and (b) the court is also satisfied beyond reasonable doubt that— (i) the offender planned in advance to have with him or her and to use an offensive weapon or firearm, and in fact used the offensive weapon or firearm to cause the victim's death; or (ii) the offender planned in advance to engage in the conduct that resulted in the victim's death and at the time of the planning a reasonable person would have foreseen that the conduct would be likely to result in death; or (iii) the offender caused two or more serious injuries to the victim during a sustained or prolonged attack on the victim. (4) Subsection (2) does not apply to a person who is under the age of 18 years at the time of the commission of the offence. s. 6 -- 12 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 11 Authorised by the Chief Parliamentary Counsel (5) In this section— firearm, offensive weapon and serious injury have the meanings given by section 15 of the Crimes Act 1958. 9C Custodial sentence must be imposed for manslaughter by single punch or strike (1) This section applies to the sentencing of an offender (whether on appeal or otherwise) for an offence of manslaughter if— (a) the prosecution served and filed a notice under section 9A in relation to the offence; and (b) the notice specifies, in accordance with section 9A(3), that it relates to this section; and (c) the notice has not been revoked under section 9A(8). (2) In sentencing the offender, the court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists. Note Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence. (3) Subsection (2) applies to the court in sentencing the offender only if the court is satisfied beyond reasonable doubt that— (a) the victim's death was caused by a punch or strike that, under section 4A(2) of the Crimes Act 1958, is taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act; and s. 6 -- 13 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 12 Authorised by the Chief Parliamentary Counsel (b) the offender intended that the punch or strike be delivered to the victim's head or neck; and (c) the victim was not expecting to be punched or struck by the offender; and (d) the offender knew that the victim was not expecting, or was probably not expecting, to be punched or struck by the offender. (4) The court may be satisfied of the matters specified in subsection (3)(c) and (d) even if the victim was involved in a confrontation with the offender or any other person before the punch or strike was delivered. (5) The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender. Example The offender might only warn the victim of the punch or strike so close to the time of the delivery of the punch or strike that the victim is not expecting to be punched or struck by the offender. (6) Subsection (2) does not apply to— (a) a person who aids, abets, counsels or procures the commission of the offence; or Note See section 323 of the Crimes Act 1958. s. 6 -- 14 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 13 Authorised by the Chief Parliamentary Counsel (b) a person who is under the age of 18 years at the time of the commission of the offence. (7) In this section— strike has the meaning given by section 4A of the Crimes Act 1958.". 7 Custodial sentence must be imposed for gross violence offences For the heading to section 10 of the Sentencing Act 1991 substitute— "Custodial sentence must be imposed for causing serious injury in circumstances of gross violence". 8 Special reasons relevant to sentencing for gross violence offences (1) For the heading to section 10A of the Sentencing Act 1991 substitute— "Special reasons relevant to imposing minimum non-parole periods". (2) In section 10A(2) of the Sentencing Act 1991, for "section 10" substitute "section 9B, 9C or 10". (3) Before section 10A(3)(a) of the Sentencing Act 1991 insert— "(aa) the Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 10 years should ordinarily be fixed for an offence of manslaughter in circumstances in which section 9B(2) or 9C(2) applies; and". s. 7 -- 15 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 14 Authorised by the Chief Parliamentary Counsel 9 New section 152 inserted After section 151 of the Sentencing Act 1991 insert— "152 Transitional provisions—Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 (1) 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 the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014. (2) For the purposes of subsection (1), 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 the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014, it is alleged to have been committed before that commencement.". Division 2—Amendments consequential on commencement of Crimes Amendment (Abolition of Defensive Homicide) Act 2014 10 Custodial sentence must be imposed for manslaughter in circumstances of gross violence For section 9B(3)(a)(ii) of the Sentencing Act 1991 substitute— "(ii) the offender entered into an agreement, arrangement or understanding with 2 or more persons to engage in the conduct that resulted in the victim's death; and s. 9 -- 16 of 20 -- Part 3—Amendment of Sentencing Act 1991 Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 15 Authorised by the Chief Parliamentary Counsel Note See Subdivision (1) (Complicity in commission of offences) of Division 1 of Part II of the Crimes Act 1958.". 11 Custodial sentence must be imposed for manslaughter by single punch or strike (1) For section 9C(6)(a) of the Sentencing Act 1991 substitute— "(a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or". (2) The note at the foot of section 9C(6)(a) of the Sentencing Act 1991 is repealed. __________________ s. 11 -- 17 of 20 -- Part 4—Amendment of Other Acts Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 16 Authorised by the Chief Parliamentary Counsel PART 4—AMENDMENT OF OTHER ACTS 12 Sentencing Amendment (Baseline Sentences) Act 2014 (1) In the heading to section 10 of the Sentencing Amendment (Baseline Sentences) Act 2014, for "152" substitute "155". (2) In section 10 of the Sentencing Amendment (Baseline Sentences) Act 2014, for "152" substitute "155". 13 Sentencing Amendment (Emergency Workers) Act 2014 (1) Section 5(1) of the Sentencing Amendment (Emergency Workers) Act 2014 is repealed. (2) For section 5(2) of the Sentencing Amendment (Emergency Workers) Act 2014 substitute— '(2) In section 10A(2) of the Sentencing Act 1991, for "9C or 10" substitute "9C, 10 or 10AA".' (3) In the heading to section 12 of the Sentencing Amendment (Emergency Workers) Act 2014, for "623" substitute "625". (4) In section 12 of the Sentencing Amendment (Emergency Workers) Act 2014, for "623" substitute "625". __________________ s. 12 -- 18 of 20 -- Part 5—Repeal of Amending Act Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 17 Authorised by the Chief Parliamentary Counsel PART 5—REPEAL OF AMENDING ACT 14 Repeal of amending Act This Act is repealed on 1 November 2015. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 14 -- 19 of 20 -- Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014 No. 72 of 2014 18 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 20 August 2014 Legislative Council: 4 September 2014 The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958 and the Sentencing Act 1991 in relation to manslaughter and to make minor technical amendments to other Acts and for other purposes." Endnotes -- 20 of 20 --