The Thomas Kelly case: why a “one punch” law is not the answer
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In July 2012, Bowral teenager Thomas Kelly was king-hit and killed in Kings Cross by Kieran Loveridge in a senseless act of random, alcohol-fuelled violence. When Loveridge pleaded guilty to manslaughter (and four unrelated assaults that occurred on the same evening) in June 2013, many expected that he would receive a hefty prison sentence. When Justice Campbell sentenced him to a non-parole period (NPP) of four years for the manslaughter of Mr Kelly, the outrage from the media and public was immediate. The New South Wales government was also quick to react with a classic “law and order” response, proposing a new “one punch” law.
Through an examination of the history and operation of one punch laws in Australia, and an examination of the definition and operation of the New South Wales crime of unlawful and dangerous act manslaughter, this article argues that there are three reasons why a one punch law is not the answer. First, it is inaccurate to characterise a one punch law as filling a gap in New South Wales law regarding fatal violence; there is no gap of the sort that exists in the Code jurisdictions. Secondly, a one punch law may have problematic impacts on the way that the criminal law is used to respond to domestic (and other) homicides. Thirdly, such a law has the potential to reduce sentences in cases where death results from a single punch; the precise opposite effect of the government’s stated justification for acting.
The article first provides an overview of Mr Kelly’s death and Mr Loveridge’s sentencing. It next examines the history and operation of so-called one punch laws in Australia, focusing on s 281 of the Criminal Code 1913 (WA), and highlights reasons to be cautious about whether this approach provides an appropriate model for New South Wales. The article then examines the legal tests and operation of the New South Wales offence of unlawful and dangerous act manslaughter in relation to one punch deaths, with an emphasis on disproving the claim that there is a gap in the State’s criminal law that needs to be filled with a one punch law. The last part of the article focuses on the perceived leniency of sentences in one punch manslaughter cases and explores whether a guideline judgment is an appropriate way forward.