Wollongong solicitor Aaron Kernaghan has called for a guideline judgment for ‘‘one-punch’’ manslaughter cases, claiming it would remove the uncertainty now facing judges.
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The call for an overhaul of the ‘‘one-punch’’ laws reached fever pitch earlier this month, following the sentencing of Kieran Loveridge who fatally king-hit Bowral teen Thomas Kelly during a night out in Kings Cross last year.
Loveridge was sentenced to four years behind bars for the assault.
The decision by Justice Stephen Campbell on November 4 brought a furious response from the victim’s parents, who branded the sentence ‘‘shocking’’ and ‘‘a joke’’, and outraged the community.
The term is set to be appealed in the NSW Court of Criminal Appeal on the grounds it was ‘‘manifestly inadequate’’.
Debate has since swelled in the legal community about the need for a repeal of the ‘‘one-punch’’ laws with people variously calling for specific legislation to deal with the offence or a rethinking of the manslaughter charge.
Mr Kernaghan does not believe new legislation is necessary, claiming the statute already adequately deals with the offence.
‘‘We already have a charge that covers cases where people die as a result of an act that didn’t intend death,’’ he said.
‘‘The seriousness of that outcome is reflected in the charge – it carries a term everyone knows and understands and allows judges to measure people’s criminal responsibility for those sorts of acts against the seriousness of the consequences.
‘‘A specific law for ‘one-punch’ cases where a death results ...would only further complicate things; we don’t need more offences to choose from, we need to look at how to perfect sentencing practices so the proper sentence fits the crime.’’
Mr Kernaghan supports calls for a guideline judgment, handed down by the Supreme Court for other judges to follow, believing it would help future sentencing exercises.
‘‘It’s not about changing the law but rather providing guidance and principles, which also gives the court the ability to deal with cases on their merits and consider exceptional circumstances,’’ he said.
‘‘Judges still need to be able to deal with cases in a merciful way and provide leniency – exceptional cases do come up – it wouldn’t be fair to give a young person with an intellectual disability the maximum penalty for an offence...a guideline judgment approach would increase the principles and guidance for judges, while preserving flexibility.’’
Mr Kernaghan believes the Thomas Kelly case has highlighted not only problems with ‘‘one-punch’’ laws but the difficulty facing judges who have to balance community expectations against the offender’s subjective circumstances.
‘‘I have sympathy for judges who have to give a penalty that satisfies the community but complies with the government’s other requirements,’’ he said.
‘‘Judges have to reduce any sentence by a quarter for an early guilty plea; aside from that, there are often other reasons to reduce sentences including youth, special circumstances and the need for supervision while on parole.
‘‘Time in custody is one part of the sentence but the second part – being out of custody – is equally important.
‘‘People facing their first time in custody need longer on parole to reintegrate, they need supervision and rehabilitation so judges need to hand down a sentence that reflects that too.’’
NSW Law Society president John Dobson has also thrown his support behind a guideline judgment, claiming it would provide greater clarity and certainty than introducing a new offence.