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A Wollongong District Court judge has lashed out at the state's controversial one-punch alcohol laws and the "staggering injustice" they could create when applied to some manslaughter cases.
The comments were made after Scarborough father Jason Cavanough narrowly avoided a manslaughter conviction on Tuesday for killing his cousin in a drunken altercation outside a Woonona restaurant in 2012.
The case hinged on the defence that Mr Cavanough only pushed his cousin, Allan Neilson, after the 60-year-old swung a punch at him as the pair stood outside the Emerald Chinese Restaurant that evening.
Presiding Judge Paul Conlon said the case "would have presented a most difficult sentencing exercise for the court" had a guilty verdict been returned and the new mandatory sentencing legislation applied.
"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," he said. "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."
Judge Conlon said the discretionary powers of the court, which aimed to prevent such injustices, had been taken away by politicians "without any real appreciation" of the wide range of factual situations or degrees of culpability covered in manslaughter cases.
The scathing assessment comes after Judge Conlon, in April, used the case of Bellambi ear biter Simon De Wet to question the sense of treating sober offenders more leniently than those who were drunk.
In that case, there was no evidence De Wet was under the influence of alcohol or drugs when he savagely bit off part of another man's ear during a violent kidnapping attempt.
"No sensible legislation can ever result when logic is totally ignored," he said at the time.
"How could it ever be acceptable to argue that an offender who is not intoxicated by alcohol or drugs should be considered less criminally culpable than one who was?
"Judicial sentencing discretion is vital to the court's ability to impose penalties that are appropriate to meet all the evidence presented on the question of sentence.
"In my view, in some cases, mandatory minimum terms will prevent the courts doing what the community expects - that is, to hand down sentences that are right and just in all the circumstances."