The Queensland Government’s Safe Night Out Scheme has introduced new laws to target those who ‘kinghit’ another by imposing a tough legislative regime with lengthy penalties.
Clause 14 of the Safe Night Out Legislation Amendment Act 2014 amends the Criminal Code and creates a new offence, unlawful striking causing death. The new offence located in section 314A of the Criminal Code provides that a person who unlawfully strikes another person to the head or neck causing, directly or indirectly, the death of the other person is guilty of a crime.
The offence carries a maximum penalty of life imprisonment. Where an individual is sentenced to a term of imprisonment, the court must also impose a mandatory minimum non-parole period of 80 percent, or 15 years imprisonment, whichever is lesser.
There are a number of key features to the new offence:
• The term “strike” is defined under the amendments to mean directly applying force to a person by punching, kicking, or by otherwise hitting using any part of the body, with or without the use of a dangerous or offensive weapon or instrument.
• The application of section 23(1)(b) of the Criminal Code (requirement of intention, or reasonable foreseeability of the consequences) and the defence under section 270 of the Criminal Code (prevention of repetition of an act or insult) are expressly excluded under the new section.
It is therefore anticipated that the new section will ensure that the community is protected from what has been described as ‘cowardly acts of violence’. The Government’s intention in excluding these provisions is to preclude the accused from attempting to argue that the strike was not deliberate nor wilful, and that the death of the victim was an event which occurred by accident and was not reasonably foreseeable as a consequence.
• Section 314A expressly provides that an assault is not an element of unlawful striking causing death. The result being that the defence of provocation under s268 and s269 of the Criminal Code do not apply to the new offence.
• The new section does provide that a person will not be criminally responsible for an offence against unlawful striking causing death if the act of
striking the other person was done as a part of a socially accepted function or activity and was reasonable in the circumstances.
These amendments follow similar introductions in NSW and Victoria which have imposed mandatory minimum 8 year and 10 year terms of imprisonment respectively. The Queensland amendments became effective on 5 September 2014.
