What is law reform?Law reform is adaptations made to legislation and laws to reflect contemporary society. As society moves ahead, the law lags behind. It is essential that law reform encourages improvements within society in order to achieve justice for the accused, victims, and the society. The effect of these changes can be seen through the creation of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) to mandatory sentencing reflecting its important role in the achievement of justice.
Brief Account of Loveridge’s crimeThe R v Loveridge 2013 [NSWSC] 1638] 1638 revolves around an intoxicated young offender pleading guilty to five counts of offending, occurring on 7th July 2012 at Kings Cross. The offender pleaded guilty for five counts of unprovoked attacks carried out randomly on unsuspecting strangers, consisting of one charge of assault occasioning actual bodily harm, 3 charges of common assault, and one charge for the manslaughter of Mr. Kelly. The offences compounded together form an overall episode of alcohol violence (LIAC Crime Library,2014).
This case was heard in the Supreme Court.Many expected that he would receive a hefty prison sentence. During the trial however, the presiding judge, Justice Campbell, used his discretion in choosing to implement a sentence that allows individual circumstances to be considered when applying the law. It allows it to balance the rights of the community, individuals, the accused and the victims while addressing the tension and any possible discrepancy (inconsistency) between these competing interests. On 8 November 2013, Justice Campbell sentenced Kieran Loveridge to a total of seven years and two months for the one-punch death of teenager Thomas Kelly and four assaults with an effective non-parole period of five years and two months. The sentencing judge taking in to account his plea of guilty and the balance of aggravating and mitigating factors in sentencing, concluded that his sentence being reduced to manslaughter was sufficient. The leniency of the trial has been imposed with the hope that within its duration Loveridge can redeem himself, and also acts as a deterrence to criminals that committing manslaughter will result in a heavy prison sentence. Loveridge will be provided with access to specialized programs for violent young offenders and those engaged in alcohol-fueled violence.Although, the leniency of the trial sparked an outrage from the media and the public was immediate. While it can be inferred that the sentence did not satisfy the needs of the victim, the courts are not there to appeal to emotions of victim’s family and periods of imprisonment are not regarded as payment (Cowdery, SMH 10/11/13). Under the Sentencing Procedure Act (1999), The judge or magistrate will consider, as it always the case with respect to sentencing, the impact of the crime upon the victim, their family, and the community. When victims or society discover that the defendant has been adequately punished for the crime, they achieve a certain satisfaction that the criminal procedure is working effectively, which enhances faith in law enforcement and our government.Following the backlash, the DPP appealed on the grounds of manifestly inadequate’ meaning that the sentence failed to reflect the feelings of civilized society to the crime in question. If the DPP believes that a sentence is too low, the DPP may appeal against the length of that sentence. The crown believed that the sentences failed to punish the Respondent adequately for very serious and highly morally blameworthy conduct. (LIAC Crime Library, 2014). The appeal was successful and Loveridge was resentenced to a minimum of 10 years, two months jail for the night of violence. Conversely, Kieran Loveridge appealed for a reduced sentence but failed. Timeline of the Reponses to the Loveridge sentence15 August 2012- An audit was undertaken of the venues in Kings Cross by the Office of Liquor, Gaming and Racing.18 September 2012- Premier O’Farrell announced the NSW Government Response to Issues in Kings Cross’ (New South Wales Government 2012).7 December 2012- The Liquor Amendment (Kings Cross Plan of Management) Bill 2012 (NSW) was commenced, introducing liquor license conditions.8 November 2013- Greg Smith (NSW Attorney General) released a media statement asking the DPP to consider an appeal against the sentence handed down.12 November 2013- The Attorney general had announced a proposed a bill based on a Western Australian one punch law’.19 November 2013- A public rally was held in Sydney’s Martin Place calling for tougher and mandatory sentences for violent offenders.14 December 2013- The Sydney Morning Herald revived the Safer Sydney’ campaign and the Telegraph ran the Enough’ campaign.21 January 2014- Premier O’Farrell announced his 16-point plan to tackle drug and alcohol violence.30 January 2013- The Parliament introduced to new offences to the Crimes Act 1900 (NSW): assault causing death, and aggravating factors in relation to intoxication.24 February 2014- The lockout laws came into statutory effect through the Liquor Amendment Act 2014 (NSW)30 January 2013- The Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2013 in response to community calls.4 July 2014- The NSWCCA determined that a head sentence of 14 years was appropriate, reduced to 10.5 years after taking his guilty plea in account. 30 January 2014- The NSW Parliament enacted the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW).Conditions of reform that led to the creation of Crimes and Other Legislation AmendmentThe Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) was amended to include a minimum mandatory punishment for future offenders aiming to deter alcohol-fueled violence, setting a binding precedence of harsher punishment for future offenders, bringing justice to society and Thomas Kelly. This was in response to the society’s changing social values and new concepts of justice, to reflect the moral views and needs of modern society. This case is the catalyst for one-punch laws, and it is argued that this legislation was passed due to the intense media and public campaign that was triggered by the sentencing in November 2013 of Kieran Loveridge for the manslaughter of Thomas Kelly, a campaign that dramatically intensified over the summer of December/January 2014. It was clear that this public support put enormous pressure on the government to act on alcohol fueled violence. Within weeks the government bowed to public pressure and implement strict mandatory sentencing laws for violent offences fueled by alcohol.The media also played a huge role in the creation of the Crimes and Other Legislation Amendment (Assault and Intoxication) 2014 NSW. In an article Four years for a life: Kelly Family’s Outrage, (Bibby, SMH, 2013), the media took up their case to achieve justice for the Kelly Family. The support was broadened through the Enough is Enough campaign and a public rally in Sydney calling for tougher and mandatory sentences for violent offenders. The Sydney Morning Herald launched its Safer Sydney Ad Challenge campaign and challenged readers to be part of the solution to help reduce the incidence of alcohol-fueled violence. These campaigns resulted in the NSW premier pledging to act with tough new law reforms which included mandatory sentencing for drunken attacks. The media was a key agent in the outcome of this case and the justice of society and the victim’s family. In addition, the Kelly’s family also initiated a lot of publicity around the case in the hope of obtaining justice on their son’s behalf. They drew attention to the level of alcohol-fueled violence in Sydney, especially in the King’s Cross area. They were also very vocal in their outrage over Loveridge’s original sentence, launching an online petition calling for a new offence to be created between accidental death and murder, with mandatory minimum sentences to be applied. This petition of over 142,000 signatures was delivered to the government. Mrs. Kelly said to the Sydney Morning Herald outside the court How many of our children have to die before somebody does something to change these laws to make people accountable for what they do? (Four years for a life: Kelly’s family’s outage’ Bibby, 2013). Their petition along with their statements to the media were key in publicizing the case and being a non-legal mechanism for achieving justice Agencies & mechanisms of reform Mechanisms for law reform help initiate changes to legislation, comprise of courts and parliaments. The legal mechanisms of the appeals from legal documents, in particular the DPP were particularly effective in achieving justice for the victim which was in society’s best interest. The DPP appealed Kieran Love ridges initial sentence of 4 years to the Criminal Court of Appeal and won, which society found to be a just result. This appeal and subsequent victory lead to the mandatory sentencing laws in regard to one punch.Law reform agencies are a key mechanism in regard to law reform. However, without input from the NSW Law Reform Commission (NSWLRC) or other expert groups, the government of NSW announced and passed the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW).In their 2013 report, the Justice Sentencing Court gave considerable thought to this operation and future of the (Crimes Sentencing Procedure) Act 1999 NSW, concluding that We are not convinced that the proposal would have a significant impact on deterring alcohol and drug fueled violence we do not support the proposal. However, despite these recommendations, on 21 January 2014, NSW Premier Barry O’ Farrell announced a 16-point plan to tackle drug and alcohol violence.The investigation by Strike Force Mohawk, which comprised squad detectives and Kings Cross officers was formed to investigate the incident and was needed by the Homicide Squad’s Detective Inspector Mick Sheehy. Investigation was effective, considering that CCTV footage and public information is used to form a circumstantial case against Loveridge and bring him to justice. The effectiveness of this legislation of mandatory sentencing in achieving justice also had a range of response from a legal standpoint. Hugh Garth was the first person in New South Wales to be convicted under the one-punch laws after being found guilty over the death of another man in 2014 as outlined in the article Hugh Garth to face new one-punch law over Raynor Manalad’s death’, (SMH,2014). Complaints from legal bodies and civil liberty groups have ranged from concerns that increased penalization will clog up the courts and the legal system, to question as to whether members of the Indigenous community will be unfairly targeted. According to a post on the Sydney Criminal Lawyers Blog Using alcohol as a mitigating factor is unlikely to act as a deterrent as people who are intoxicated aren’t going to be able to think clearly and rationally (Nedim, 2014). This statement has raised concern for the justice of the offender.However, the Attorney General said there had been a massive reduction in violence since the introduction of the legislation and believes it has been extremely effective in achieving justice for both the victim and society. The main features of the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014′ includes: Eight-year minimum sentencing for alcohol or drug-fueled assaults ending in death. Serious assault maximum penalty increased by two years, with mandatory minimum sentences. On the spot fines for disorderly behavior increased from $200 to $1,100 Police have powers to immediately ban troublemakers’ from CBD/Kings Cross Penalty for possession of steroids increased from two to 25 years CBD/Kings Cross venues to have 1:30am lockouts with drinks stopping at 3:00am Bottle shops across NSW to close at 10:00pmControversiality of (Crimes and Other Legislation Amendment (Assault and Intoxication) 2014 NSW)The one punch law has had positive implications according to St Vincent’s hospital in decreasing assaults. St Vincent’s hospital emergency director Gordian Fulde said, assaults have fallen about nine percent across the state and alcohol-related injuries had also dropped significantly The Australian (2015). These statistics have dropped since both the one punch laws and lock out laws have come into place. The positive implications of the one punch law are also shown in SMH article 29/8/16. According to a Fairfax commissioned ReachTEL poll of 1600 voters 60 per cent of NSW voters support extending the 1:30am lockout and 3am last drinks in force across Kings Cross and parts of the CBD. Dr John Crozier from Royal Australasian College of Surgeons said, These are reasonable measures and they work. Dr Crozier continuing stating the CBD lockouts had more than halved the numbers of patients needing serious facial surgery. This highlights the legislation being effective to an extent in achieving justice for the community in the criminal justice system. Criticisms of the one punch law reforms mainly include problems with mandatory sentencing. A mandatory sentence means that statute provides a mandatory or minimum sentence that a person must receive when convicted of a crime. This limits a judge’s discretion including the influences of mitigating and aggravating circumstances, in sentencing. Such amendments are forcing judges to impose higher sentences in cases which do not merit such heavy punishment. Judges are forced to administer the law regardless if they agree. Discretion hinder the ability for judges to achieve adequate justices in cases.Another point that bears mentioning is that he introduction of the mandatory sentencing under the Crimes (Sentencing Procedure) Act 2014 NSW) are seen as not effective in general, especially cases involving alcohol-fueled violence. This is due to a change in a person’s behavior while they are intoxicated, which can affect their self-control. It doesn’t justify their intoxicated behavior, but it is important to note that they may not be in control of their actions. This also removes the ability for a judge to judge each individual case on its own merits. As such, the removal of judge discretion can lead to injustice. Furthermore, areas of ineffectiveness evident in the achieving justice for victims are evident in the one punch law reforms. According to the WA and NA Governments, the CVSA and media, the one punch law reforms has compromised the achievement of just outcomes for victims. One perspective is in The Guardian 21/1/14, criticizing the one punch law reform for the removal of the fundamental concept of judicial discretion, and emphasis on the offender’s mitigating circumstances and not enough on victim’s family. As stated by the former Queensland Sentencing: The impacts on victims of serious crime and their families can be devastating and continue long after an offender has served their sentence’. Indicating that the one punch reforms not the solution to the problem, but the problem blocking the solution’. This dissatisfies a portion of society who feel that justice has not been achieved in the Kelly case. Another argument against this tough on law and order’ style of criminal law reform, is that it is notable where more measured assessments of the need for such offences has been undertaken, in particular by law reform commissions in Australia. It was against their recommendation that these laws were legislated which raises the question of should they really have been passed.