THE NEED TO INCREASE TO PENALTIES FOR “KING HIT” KILLINGS AND WIDER IMPLICATIONS FOR THE SENTENCING SYSTEM
By Mirko Bagaric
Proposed penalty increases for “king hit” (or one-punch) deaths following the public outcry stemming from the four-year minimum term imposed on Kieran Loveridge for killing Thomas Kelly again highlight the reactionary nature of sentencing. More than that, they highlight the intellectual and empirical wasteland that is sentencing law in Australia.
More than 100,000 people have signed a petition urging for tougher sanctions to be imposed on “king hit” killers. The petition would not have got off the ground if sentencing law was better informed and adapted to the imposition of penalties that correlated to the seriousness of the crime. Granted, the public are not well-informed of the complexities associated with sentencing law and practice but they know enough to understand that something is fundamentally broken when an offender who through an act of profound thuggery that takes the life of a young man and forever devastates his family receives only double the minimum prison term as a former judge (Justice Einfeld) for lying on oath about a traffic infringement.
I have previously written in this Journal that there are several fundamental failings of the sentencing process, which unlike nearly every other area of human endeavour has, for the past hundred years or so, remained stubbornly impervious to knowledge based reforms. The Loveridge sentence highlights one potentially important and wide-ranging distortion in our system: the insufficient emphasis accorded to consequences in sentencing outcomes. Loveridge did not intend to kill Kelly and Kelly’s death was attributable in part to the unfortunate happenstance of the punch having a more serious impact than anticipated.
Yet, four years imprisonment does not come close to reflecting the harm occasioned to Thomas Kelly and his family. The seriousness of the crime committed by Loveridge should be diluted by the fact that he did not intend a lethal outcome. However, the discount is too significant. The difference between an intentional killing by stabbing and an unintentional killing by an incontestably unlawful act of thuggery in the form of fist to the head is not 14 years imprisonment (the average non-parole period for murder in New South Wales is approximately 18 years). Put another way, it is not tenable to suggest that a stabbing murder is three or four times more serious than a one-punch killing.
Moreover, the hardship stemming from a four-year term of imprisonment manifestly fails to acknowledge the loss that has been caused by the crime: it demeans the inherent worth of the life of the victim.
The only way to rectify this sentencing flaw and to prevent more grossly inappropriate sentences been imposed is for legislatures to accept that we need a bifurcated system of sentencing, whereby all people who commit serious sexual and violent offences are always imprisoned – and for considerable periods – while imposing other forms of sanctions most other types of crimes. The reason is simple: research shows that acts of violence and sexual assault devastate the lives of victims, while victims of most other crimes suffer far less.
To be clear, a call for longer penalties for king hit killers will not necessarily make the community safer (general deterrence does not work and most violent offenders do not recidivate). That is not the argument. Offenders like Loveridge deserve longer penalties for one reason: the suffering the state inflicts on them via criminal punishment should be proportionate to the seriousness of their crime.
Editorial note: Issue 38.1 also contains an article on the Thomas Kelly case and one-punch killings by Dr Julia Quilter, of the University of Woollongong: (2014) 38 Crim LJ 16. See also the Criminal Law Journal’s co-general editor, Stephen Odgers SC, commenting on the new legislation on ABC News, plus Mirko Bagaric’s opinion piece in The Sydney Morning Herald.