Well played, dickheads.
The new offence & mandatory minimum sentence for so-called ‘one-punch’ assaults occasioning death, announced today by the O’Farrell Government is poor public policy on several counts. I don’t have time to pretty this up, I want to put a few thoughts out there & some links. You can chew my argument up & spit it out, but bring your A game. I worked for a government which made similarly populist decisions & they sucked arse. This one bites because it’s not only bad policy, it’s bad politics.
1/. What has the NSW Government done?
See the fact sheet released by the government here. In addition to the new ‘one punch’ offence, the government will:
- increase maximum sentences by two years and introduced mandatory minimum sentences for serious assaults committed under the influence of drugs and alcohol;
- create a new ‘CBD precinct’ stretching from Kings Cross to Cockle Bay, The Rocks to Haymarket and Darlinghurst which will be subject to 1.30am lockouts and no alcohol sales after 3am;
- not approve new liquor licenses for pubs and clubs within the precinct;
- run free buses from Kings Cross to the city every 10 minutes;
- give police the power to ban ‘troublemakers’ from the precinct for up to 48 hours and the Police Commissioner the power to ban persons from the precinct for extended periods of time;
- introduce a periodic ‘risk-based’ licensing system, based on the Victorian model (higher fees based on poor compliance);
- change closing times for liquor stores to 10pm Statewide;
- increase on-the-spot fines for anti-social behaviour;
- toughen penalties for the possession of steroids;
- suspend online Responsible Service of Alcohol (RSA) certification until changes are made to protect their integrity;
- continue covert police surveillance to prevent sales of alcohol to minors; and
- run a social media and advertising campaign.
2/. Why has the O’Farrell government acted?
The new ‘one punch’ offence is a reaction to a handful of high-profile cases and a sustained campaign by both the Sydney Morning Herald and the Daily Telegraph. The moral hazards or unintended consequences this moralising presents will come back and bite us all on the bum. You’ve got 150,000 signatures on a petition? I reckon I could do a whip count and match it with people who think this is at best unhelpful, creates different classes of victims of crime and could make a situation inflated by the media worse. When the State Government body which collects crime statistics tells you last week that the facts do not bear out the media campaign, you know you’re on a loser. Here is the latest NSW quarterly crime report. Violent crime is falling or stable in the City of Sydney. Crimes, as reported to police and passed to the Bureau of Crime Statistics and Research, but no, let’s go and set our hair on fire over a catch phrase.
One Australian woman a week is killed by a current or former partner. ONE A WEEK, but you’re most likely to read about it if the Governor-General speaks about it, or the victim is a beautiful young woman. I live for the day either of these rags passionately advocates for a ‘safer Sydney’ for women and children murdered by their partners. White Ribbon Day is a fantastic initiative, but it’s not in the same league as the ‘one punch’ mission the newspapers went on. Why choose to crusade over the tragic deaths of a few young men when BOCSAR research indicates domestic violence is grossly under reported. If Dr Don Weatherburn & his team is right, you could look at doubling the recorded number of assaults in a domestic setting. There were 27,000 in the 12 months to September 2013.
- The recorded number of assaults in the domestic setting in the City of Sydney LGA in the year ending September 2013? 905
- The recorded number of assaults in the domestic setting in the City of Sydney LGA in the year ending September 2012? 874
- The recorded number of non-domestic related assaults in the City of Sydney LGA in the year ending September 2013? 3583
- The recorded number of non-domestic related assaults in the City of Sydney LGA in the year ending September 2012? 3737
This data is published quarterly by BOCSAR. It is freely available & I strongly encourage you to refer to it whenever you read about what constitutes or provides for ‘a scared community with the succour and support it needs’. Also, listen to the Governor-General’s second Boyer Lecture in full. If her words on the Convention on the Elimination of Violence Against Women (CEDAW) and its Australian context doesn’t blow your socks off, I don’t know what will. How dearly I will miss Her Excellency. I’m not big on titles, but Quentin Bryce deserves that one.
3/. Why am I angry?
- I am terribly sorry for the loss of these young men’s lives. The grief of their families and friends … I’ve never known it. I don’t question the push for sentencing reviews. A life lost in circumstances such as Thomas Kelly’s is worth more than the four-year sentence handed down to the man who punched him. I just don’t believe that a new offence needs to be created, or that one life ended at the hands of a violent drunk is worth more or less than another’s. A person who is stabbed to death is not any more of less dead than a ‘one punch’ victim. The person who stabbed them might be up for murder, found guilty, be sentenced to life and get a non-parole period of 10 years. Excellent. Reverse the situation. The 25 year old man charged with murder following the death of Daniel Christie on 11 January 2014 faces life imprisonment if the Crown proves his intent was to kill Mr Christie, or that he acted with reckless indifference to human life. If the charge of murder is proven, it serves as a precedent for charges to be laid in future cases. That’s a life sentence, which carries a standard non-parole period of 25 years. The maximum sentence under the new offence (if the offender is intoxicated by drugs or alcohol) is 25 years. The call to ‘get tough on thugs’ could result in a plea bargain for the lesser offence, and wind up before a judiciary chafing at the bit to tell the executive branch of government exactly what they think of mandatory minimums by handing out custodial sentences of 10-12 years. Well played.
- Voluntary intoxication will be removed as a mitigating factor in hearing such cases, but the ‘vulnerability’ of the victim (such as age) is still taken into account as an aggravating factor. What happens if an 18-year-old man (they’re not ‘boys’, so let’s stop with that right now) physically attempts to restrain you to further unwanted sexual advances? Say the man is pissed out of his brain and falls like a sack of spuds if, in desperation, you hit them with an open backhander? Is it a WFA title bout? What constitutes ‘one punch’? What happens if two people each throw one punch, and only one connects, or as Ed Butler writes today, a person reacts to seeing a male or female friend being threatened or assaulted, lands one punch on the instigator, who then falls and dies? How do you treat the death of someone after a ‘brawl’, such as Daniel Cassai? Does anyone deserve a mandatory minimum of eight years’ jail because they’ve clocked someone on the back of the head in an effort to stop a rape? Removing judicial discretion – the idea that judges and magistrates have the wisdom, experience and knowledge of the law to give proper consideration to all evidence presented in court – is just a nonsense; as is the implication that a jury of our peers can’t understand or execute their role, one of the most important in our society. It’s a bloody insult to our collective intelligence. In the United States,the introduction of mandatory minimums for dealing in crack cocaine – but not powder cocaine resulted in one thing: disproportionate incarceration rates among young men from minority and lower socio-economic backgrounds. It’s the same drug, just presented in a different form. This is what I mean when I talk about creating classes of victims. Are the Christie and Cassai cases so different? All people who die during, or following a violent assault should be treated with the same dignity.
- Mandatory minimum sentencing laws do not work, here or abroad. As Declan Roche wrote in a 1999 Australian Institute of Criminology report;
- they are not a general deterrent to crime – deterrence implies that people are rational actors when considering committing a crime when much crime (especially crimes such as ‘one punch’ assaults’) is impulsive and involves limited deliberation;
- they are not cost-effective - in fact, they are the opposite of a cost-effective solution to fighting crime. Consider the increased costs in the court system as more defendants contest charges to try to avoid the mandatory penalty that follows conviction, where they otherwise may have entered a plea of guilty; cost of housing large numbers of offenders imprisoned under mandatory sentencing laws. In Australia it is estimated that it costs up to $60,000 to keep a prisoner imprisoned for a year and approximately $200,000 to build a new cell;
- they do not promote consistency in sentencing - statutory definition of offences is inherently imprecise. Very unequal offenders can receive the same sentence when convicted under mandatory sentencing. Secondly, mandatory sentences may encourage judges to circumvent the mandatory penalties imposed by legislation. Judges and juries may “nullify” laws or penalties that seem to them unjust. Thirdly, rather than eliminating discretion it simply displaces it to other parts of the criminal justice system, most notably, prosecutors. Discretion is unavoidable in the criminal justice system. When that discretion is left in the hands of judges they are in a position to attempt to achieve consistency by taking into account all the relevant circumstances of the offence. Moreover, judges’ decisions are publicly accountable through their visibility, which provides some safeguards against inconsistency. By contrast, displacing that power & putting it in the hands of prosecutors means that discretion is being exercised in a less considered, and certainly less accountable way.
- The new ‘CBD precinct’ just pushes the ‘problem’ elsewhere. What about Bondi, Coogee, Manly – all ‘notorious’ trouble spots for ‘alcohol-fuelled’ violence. I live two blocks outside the Darlinghurst suburb boundary, near other pubs in Surry Hills. Are those pubs going to adhere to the 1.30am lockouts because they want to be good neighbours? YA THINK? I look forward to the locked out masses trying to get into pubs 500 metres down the road. Fun times.
- NEW ANGER: You know loses out here? The large pubs & clubs on Oxford Street, safe places for LGBTQI people, all with 5am licences. Odds on an upsurge in gay bashings because people who choose to switch nightclubs themselves are locked-out after standing in a queue for 30min & are vulnerable to homophobic fucks? THAT. THAT RIGHT THERE IS AN UNINTENDED CONSEQUENCE.
- Here comes another ring stinger: small bars (yay, civility and $20 cocktails in Mason jars); restaurants and ‘tourist accommodation establishments’ are exempt from the CBD precinct rules on lockouts and new liquor licence applications. Excellent. Sounds reasonable, doesn’t it? Think hard. It lets James Packer’s Barangaroo casino development go ahead. No worries.
- The ‘bans’ on ‘troublemakers’? WHAT THE ACTUAL EFF? ‘Hey, pissed up suit! Don’t bother rolling up to the office after you’ve been arrested?’ How is this even going to work?
- 10pm closing times for bottle-os? Get fucked. Just fuck right off. How many off-licences are open after 10pm? I know of two. The others are hotels which sell takeaways during opening hours. ‘Pre-loading’ doesn’t begin at 9pm. If you’ve ever caught a train from Newcastle to, or from Sydney on a Saturday afternoon, you’ll see it in full flight.
- WARNING: OFFENSIVE LANGUAGE – call a cunt a cunt and there’s a good chance some cunt will hand you a cunning $500 fine because that cunt can;
- The ‘roid angle is interesting for singling out the stereotypical ‘one punch’ deliverer – a pumped up mid-20s bloke trained in mixed martial arts. What about the ‘one punch’ puncher who really is a coward & doesn’t have the self-discipline the vast majority of people who are trained in any martial art or boxing possess?
- OH FINALLY SOMEONE HAS REALISED THAT ONLINE RSA TESTS ARE RORTED AND EVEN WHEN PEOPLE HAVE RSA CERTIFICATES THEY KEEP SERVING ALCOHOL BECAUSE MONEY.
- Covert surveillance – I think this means young cops hanging out at Liquorland but I’m not entirely sure.
- Bring forth the ad blitz. If it’s one thing Australia does well, it’s PSAs (no sarcasm; we really are very good at creating and heeding them. I just wish they’d run ‘DON’T HIT OR RAPE PEOPLE EVER’ on loop.
I know police are sick of seeing punch ons, but pro-tip from an inner-Sydney resident: I have seen police sending eight to 10 officers into nightclubs with sniffer dogs, or squad cars and paddy wagons parked outside one or two pubs, 20-30 police milling about, then walked 250 metres to my street and found a group of young blokes kicking a homeless person, or a man pushing a woman around. I’ve stepped in, because I always think, ‘what if that was me’? I’ve seen a bouncer drag a young kid from a club around into a lane way & beat the shit out of him & was too scared to intervene. I shouted at him & went into the club to tell the manager; the bouncer came in & dragged me off the premises. The manager told me to fuck off. I called the police, when they arrived they said there was no point taking the matter further because I’d had wine over dinner & the kid was a meth-addicted rent boy. I’ve seen a young woman thrown into a cab by two bouncers. When people who saw what happened tried to give the young cops a different story, they became belligerent. I’ve seen a bouncer hit a bloke, then lie about it to the cops, backed up by eight other bouncers. There is a plethora of existing law under the Crimes Act 1900 for NSW Police to enforce. There are City of Sydney bans on public drinking – in 12 years living here, I’m yet to see the bans in action. The laws & by-laws exist. They just aren’t enforced.
Finally (!) … as well as making no sense from a public policy perspective, it’s just really poor politics. I would be tempted to vote Liberal if Barry O’Farrell had stood up to the papers and their combined circulation of the population of Elizabeth Bay and led. Instead, the Premier did as he has done from 25 March 2011. He squibbed it. Small target politics is O’Farrell’s comfort zone. With the ALP unlikely to make a comeback for the next two, even three elections and a thumping majority, O’Farrell made the mistake of treating the NSW parliamentary press gallery with contempt. Ministers rarely hold press conferences or throw the lazy sods an ‘announceable’, so the media set itself as the Opposition. In a salutary lesson for the Abbott government, it shows that playing Sergeant Schultz, issuing statements instead of facing the cameras and not having the common courtesy to return calls before deadlines is a dangerous play. Sure, you can avoid the relentless questions on topics from Britney Spears to bikie shootings, but the habit of saying nothing can easily be turned into the perception of doing nothing, until you cut your losses and announce poor policy written on the back of a beer coaster, sponsored by the all-mighty liquor industry lobby. Instead of looking at the multiple causes and victims of violent assaults, Barry O’Farrell handed the papers their win. Really, the gloating is unseemly. Rather than ask the people of NSW to take a long, hard look at the way our casual acceptance of cultural norms not only around alcohol, but ego, as detailed here by Brandon Jack, followed up with this and this by Dane Rampe (which I might not agree with entirely, but I’ll take the lived experience of men of the same generation as the ones punching and dying as more relevant), the Premier folded, earned the plaudits of the crusaders and blamed one factor for an
upsurge drop in violent assaults outside the domestic setting.
This is a Government creating new law in a category where crime rates are falling and introducing mandatory minimum sentences that will increase the cost of our criminal justice system and are unlikely to be at the forefront of a drunk’s mind when they throw a punch.
We’re the biggest state in Australia and we’re being governed by the Beverly Hillbillies.
Disclosure: after the Sydney Morning Herald’s deputy editor, Ben Cubby, tweeted this today, I thought I would add the following, even though my family’s financial interests and the occupations of people I talk to when I am not writing for five hours are none of your damned business. My parents are part-owners of a pub in Muswellbrook. My sister manages a pub in Newcastle. My parents are not members of the AHA. I have friends who work for the major liquor industry lobby groups. They might want to throttle me for a few of these points. I have not been paid, encouraged or influenced to write this or any other form of written or oral communication on this issue by my parents’ financial interests OR my relationship with anyone else. These are my thoughts on a media crusade I believe is unwarranted and a Government reaction to that campaign which I see as unwise and unworkable. You’re welcome.