One Punch Law & the Coward Punch

What is a Coward Punch?

A “coward punch”, also known as a sucker punch, king hit, one punch attack or knockout punch, is an unprovoked unlawful strike to the head or neck of a victim, often knocking them unconscious and creating a risk of significant risk of death if they fit the ground.

The One Punch Law

The one punch law was introduced across Australia to build on existing measures to address alcohol-fuelled violence. In Victoria, the reforms introduced by the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014 (Amending Act) create a statutory minimum penalty for killing that occurs in circumstances involving a coward’s punch or gross violence.

Clause 1 of the Amending Act sets out the two primary purposes in relation to one punch law:

• To amend provisions of the Crimes Act 1958 to provide that a single punch or strike is taken to be a dangerous act for the purposes of unlawful and dangerous act manslaughter
• To amend the Sentencing Act 1991 to impose a statutory minimum sentence of 10 years imprisonment for manslaughter by a single punch and to require the DPP to give notice of the prosecution’s intention to seek the statutory minimum sentence for manslaughter trials.

On account of social campaigns such as ‘One Punch Can Kill’, public awareness of the dangers of a coward punch has grown over time, and the amendments intend to reflect community expectations about what is ‘dangerous’. Accordingly, the law reinforces that there is no longer any excuse for ignorance of the fact that a victim may die upon hitting the ground as a result of a single punch or strike.

The one-punch law is embedded in section 4A of the Crimes Act 1958.

One punch manslaughter

One punch manslaughter is a type of manslaughter that attracts mandatory sentencing provisions under section 9C of the Sentencing Act 1991.

To prove manslaughter by a single punch or strike, unser section 9C(3) of the Sentencing Act 1991, the prosecution must prove beyond reasonable doubt that:

• (a) The victim’s death was caused by a punch or strike that is considered a “dangerous” act for the purposes of the offence of ‘manslaughter by an unlawful and dangerous act’ (s4A(2)); and
• (b) The offender intended that the punch or strike be delivered to the victim’s head or neck; and
• (c) The victim was not expecting the punch or strike by the offender; and
• (d) The offender knew that the victim was not expecting or was probably not expecting to be punched or struck by the offender.

The court may be satisfied of the matters specified in section 9C(3)(c) and (d) even if the victim was involved in a confrontation with the offender or any other person before the punch or strike was delivered (s9C(4)). Therefore, the sentencing court will not be precluded from finding that the victim was not expecting to be punched or struck by the offender if there was an earlier scuffle.

The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender (s9c(5)). This is due to situations in which the offender might only warn the victim of the strike so close to the time of the delivery that the victim is not expecting to be struck by the offender.

The first element is that the accused committed an act causing the victim’s death (R v Stein (2007) 18 VR 376).

For offences committed from 1 November 2014:

• A single punch or strike may be the cause of a person’s death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person’s head or neck but another injury resulting from an impact to the person’s head or neck, or to another part of the person’s body, caused by the punch or strike (s4A(4)).
• A single punch or strike may be the cause of death even if the injury that caused the victim’s death resulted from an impact to the person’s head, neck or another part of the person’s body, that was caused by the punch or strike. For example, if a person punches a victim to the head, causing them to fall and die from an injury resulting from their head hitting the road, the punch may be the cause of their death (s4A(4)).

The second element for the offence of one punch manslaughter is that the act was committed consciously, voluntarily and deliberately. The prosecution must prove that the punch or strike to the victim causing death was intended to cause death or really serious injury (R v Haywood [1971] VR 755; R v Vollmer [1996] 1 VR 95).

The third and fourth elements are that the act causing death must be ‘unlawful’ and ‘dangerous’. For the purposes of this section, unlawful means being in breach of criminal law and is commonly an assault (R v Holzer [1968] VR 481).

What is a dangerous act?

A dangerous act includes a punch or strike delivered to any part of a person’s head or neck that by itself causes injury to the head or neck (s4A(2) Crimes Act 1958).

Therefore, to be a dangerous act under section 4A(2), the strike must be delivered with sufficient force to cause injury to the victim and precludes acts such as a gentle push or slap (explanatory memorandum to the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014).

Section 4A(3) provides that it is irrelevant that the single punch or strike is one of a series of punches or strikes. In such situations, the prosecution may rely on section 4A(2) if it can identify a single strike as a dangerous act that caused the victim’s death.

If this cannot be demonstrated, the common law test of dangerousness will be applied to determine whether the act that caused the death was “dangerous” for the purpose of the law (Explanatory Memorandum, Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 (Vic) 2.

The common law test is whether a reasonable person in the accused’s position would have realised that the conduct would expose the victim to an appreciable risk of serious injury (Wilson v The Queen (1992) 174 CLR 313).

What is one punch or strike?

Section 4A(6) defines “strike” to mean a strike delivered to any part of the body, including a kick, an elbow, a martial arts strike or a hit with the forearm.

Sentencing one punch manslaughter

The maximum penalty for one punch manslaughter is 25 years imprisonment.

Section 9C of the Sentencing Act 1991 requires a custodial sentence to be imposed for manslaughter committed in circumstances involving a single punch or strike unless a special reason applies.

What is the minimum sentence?

When sentencing an offender aged 18 or over for manslaughter involving a “coward punch”, a court must, unless it finds that a special reason exists, impose a term of imprisonment and fix a non-parole period of not less than 10 years.

Furthermore for the mandatory minimum non parole period to apply under section 9C if, under section 9A, the prosecution has given notice that, if the accused is found guilty of manslaughter, the prosecution will seek that the minimum non-parole period provision apply.

If the prosecution does not comply with the notice requirements, the sentencing court must sentence the offender in the usual way.

The minimum non-parole period for manslaughter by one punch does not apply if:

• the offender was under 18 at the time of the offence (ss 9B(4), 9C(6)(b)); or
• the court finds special reasons for not applying the statutory minimum ss 9B(2), 9C(2).

If the offender assists or gives an undertaking to assist law enforcement authorities in the investigation or prosecution of an offence, the court may make a finding of special reasons not to impose the minimum sentence of 10 years.

The court may also make a finding of special reasons if the offender proves that they had reduced mental functioning linked to the offence, which reduces their culpability. An offender’s mental functioning can also be relevant when determining an appropriate sentence if it would expose them to a substantially greater burden in custody.

The implications of this part of the new law is effectively expressed by McNamara and Quilter

(2016: 18, emphasis in original) who note:

• The culpability that justifies a ten-year MMS [mandatory minimum sentence] is not the fact of using fatal violence, but the element of taking your opponent by surprise. It might be countered that the focus on surprise reflects the fact that it carriers greater risk – that such a victim is more likely to fall and suffer fatal injury. Nonetheless, it is hard to ignore the message conveyed by the legislative language: that there is a “right” way to engage in male violence and harsh punishment awaits only those who do not “follow the (unwritten) rules”. 

Defences to a one punch charge

There are several defences that may be available to an accused facing charges for one punch manslaughter in Victoria.

• Involuntary or unintentional act: The accused may have a defence if their actions were involuntary or unintentional. Examples include:
  • Automatism, such as during a seizure or while sleepwalking; or
  • A cognitive impairment impacting the accused’s ability to act with intent.
• Self-Defence: Self-defence may apply if the accused acted to protect themselves from an immediate threat.

It is important to note that defences to one-punch manslaughter charges are tightly restricted under Victorian law. This aligns with the legislative intent to create a strong deterrent for this type of offending.

Coward’s punch cases

Esmaili v The Queen [2020] VSCA 63

Case Summary:

1. On 30 May 2017, Joseph Esmaili punched Mr Patrick Pritzwald-Stegmann once in the head in the foyer of the Box Hill Hospital, causing him to fall unconscious and suffer a catastrophic brain injury. Mr Pritzwald-Stegmann died from his injuries on 28 June 2017.
2. Esmaili was found guilty of manslaughter by unlawful and dangerous act by a jury on 21 November 2018.
3. The trial judge sentenced Esmaili to 10 years and six months’ imprisonment, with a non-parole period of 10 years on 17 April 2019.
4. The incident was captured on CCTV footage, which showedEsmaili putting his hands behind his back before delivering the fatal punch.
5. The punch was delivered without any warning and Mr Pritzwald-Stegmann had no chance of defending himself.
6. Esmaili sought leave to appeal against the sentence.

Grounds for appeal

1. The construction of s 9C(3)(c) and (d) of the Act, which pertains to whether the victim was expecting to be punched or struck by the offender and whether the offender knew that the victim was not expecting to be punched or struck.
2. The sentencing Judge misconstrued section 9C(3)(c) and (d) of the Act.
3. The sentencing Judge erred in her intermediate factual findings, which contributed to the conclusion that the victim was not expecting to be punched.
4. The sentencing Judge erred in finding that the criteria in section 9C(3)(c) and (d) of the Act were satisfied.

Applicant’s Submission:

• The applicant’s counsel argued that the words’ punched or struck’ in paragraphs (c) and (d) of s 9C(3) must be read as referring to any punch or strike to any part of the body, not just the particular punch or strike that caused death. They also argued that the judge erred in her factual findings, which contributed to the conclusion that the victim was not expecting to be punched. The counsel contended that the judge’s approach was a significant departure from the statutory tests in the Act.

Respondent’s Argument:

• The respondent’s counsel argued that the absence of the definite article in s 9C(3)(c) and (d) was of no significance and that the punch or strike that the victim was not expecting must be the same punch or strike to which ss 9C(3)(a) and (b) refer. They also argued that the sentencing judge’s findings of fact were open and any other conclusion would have been perverse.

Judgement:

1. The judges provided a detailed analysis for each submission. The judges agreed with the prosecutor’s argument and found that the victim was not expecting a blow. They found that the judge’s application of s 9C of the Sentencing Act 1991 was correct.
2. The court rejected the submissions advanced by the applicant’s counsel in support of the proposed grounds of appeal. The application for leave to appeal against sentence was refused. The court found that the victim was not expecting to be punched by the offender and that the offender knew that the victim was not expecting to be punched. The court also found that the offender’s actions were designed to hide his true intention. The court concluded that the offender’s behaviour was a low act that was caught by the provisions in s 9C(3)(c) and (d).
3. The court expressed concern about the inversion of the conventional sentencing principle effected by s 9C(2). It was noted that an unfortunate by-product of s 9C(2) in this case is that Esmaili will have, at most, only six months’ supervision in the community after serving at least ten years in prison.
4. The court suggested that it would be more conducive to Esmaili’s prospects of rehabilitation and, therefore, more likely to achieve protection of the community in the longer run if the judge had been allowed to fix a more conventional non-parole period.
5. Following the analysis, the judges rejected all submissions made by Esmaili’s counsel and ruled that Esmaili was guilty of the manslaughter charge. They refused leave to appeal and upheld the original sentence of 10 years and six months’ imprisonment, with a non-parole period of 10 years.

R v Lucas [2021] VSC 81

Case Summary:

1. Shane Andrew Lucas was charged with the manslaughter of David Blake, which occurred on 24 November 2019 at the Farmers Arms Hotel in Creswick.
2. The incident was captured on the hotel’s CCTV cameras, showing Lucas throwing two punches at Blake’s head. The second punch rendered Blake unconscious, causing him to fall and hit his head on the concrete path.
3. Despite attempts to revive him, Blake died at the scene. The cause of death was described as “complications of blunt craniofacial injury in a setting of alcohol intoxication, in a man with cardiomegaly and class III obesity.”
4. Lucas handed himself into the police later that morning and was subsequently charged with manslaughter.
5. Lucas pleaded guilty to manslaughter on 3 September 2020.
6. The Director of Public Prosecutions sought to apply the “coward’s punch” sentencing regime, which would require a non-parole period of at least ten years. Lucas opposed this application.

Prosecutor’s Argument:

• The prosecutor argued that Mr. Lucas’s actions were unlawful and dangerous, leading to the death of Mr. Blake. They relied on the evidence from the CCTV footage and the autopsy report to support their argument.

Defence Submission

• The defence argued that Mr. Lucas’s reaction was immediate and spontaneous, suggesting that he did not consider whether Mr. Blake was expecting to be punched. The defence also relied on the evidence of a neuropsychologist, who suggested that Mr. Lucas’s cognitive deficits and alcohol consumption may have compromised his ability to infer Mr. Blake’s expectations. The defence further argued that Mr Lucas’s defensive behaviour suggested he believed Mr Blake might retaliate, which is inconsistent with the knowledge required by section 9C(3)(d).

Judgement:

1. The judge found that the “coward’s punch” provisions did not apply to Lucas’s case as not all pre-conditions in the applicable provisions had been established beyond reasonable doubt.
2. The judge noted that while the offence was serious, there were mitigating factors, including Lucas’s plea of guilty, some remorse, and solid prospects of rehabilitation.
3. Lucas was sentenced to nine years’ imprisonment with a non-parole period of six years. The judge stated that, but for the plea of guilty, the sentence would have been eleven years’ imprisonment with a non-parole period of eight years.
4. The court found that Mr Lucas’s cognitive deficits and troubled upbringing did marginally reduce his ability to make calm and rational choices and appreciate the wrongfulness of his conduct. However, these factors were only marginally mitigating due to the complicating effect of self-induced intoxication.
5. The court also found that Mr Lucas demonstrated some remorse for his actions, as evidenced by his decision to hand himself into the police and his guilty plea. The court sentenced Mr Lucas to nine years imprisonment with a non-parole period of six years for the manslaughter of Mr Blake. The court also declared that 461 days of pre-sentence detention be reckoned as served under this sentence.
6. The court recognized the potential value of the CCTV footage in conveying the severity of the defendant’s actions and their impact on the victims. However, the court also acknowledged the victims’ concerns about the potential distress caused by the release of the footage.
7. Balancing these considerations, the court decided against releasing the footage to the media, prioritising the well-being of the victims’ family. The court also noted that no media outlet had applied for the release of the footage, possibly due to the victims’ expressed concerns.

Contact an experienced criminal lawyer

One punch manslaughter is liable to mandatory imprisonment, and being sentenced under Victoria’s one punch manslaughter laws is a serious matter.

If you have been charged or are facing charges related to one-punch manslaughter, engage an experienced criminal lawyer to assess the specific facts of your case, identify potential defences, guide you through the legal process and manage the charges effectively.  

If you or someone you know is facing one-punch manslaughter charges, seek legal advice immediately to ensure your rights are protected.

One Punch Legislation

Crimes Act 1958 – Section 4A Manslaughter—single punch or strike taken to be dangerous act

(1) This section applies to a single punch or strike that—

(a) is delivered to any part of a person’s head or neck; and

(b) by itself causes an injury to the head or neck.

(2) A single punch or strike is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

(3) For the purposes of subsection (2), it is irrelevant that the single punch or strike is one of a series of punches or strikes.

(4) A single punch or strike may be the cause of a person’s death even if the injury from which the person dies is not the injury that the punch or strike itself caused to the person’s head or neck but another injury resulting from an impact to the person’s head or neck, or to another part of the person’s body, caused by the punch or strike.

Example

If a person punches another person to the head, and that other person falls, hits their head on the road, and dies from the injury resulting from their head hitting the road, the punch may be the cause of their death.

(5) Nothing in this section limits the circumstances in which a punch or strike may be an unlawful and dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act.

(6) In this section—

“injury “has the same meaning as in Subdivision (4);

“strike” means a strike delivered with any part of the body.

Notes

1 Under section 11 of the Jury Directions Act 2015 , after the close of all evidence and before the closing address of the prosecution, defence counsel must inform the trial judge whether each element of the offence is or is not in issue, including—

• whether the punch or strike was a dangerous act; and
• whether the punch or strike caused the person’s death.

2 Under section 12 of the Jury Directions Act 2015 , the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of the matters in issue, which may include—

• whether the punch or strike was a dangerous act; and
• whether the punch or strike caused the person’s death.

Sentencing Act 1991 – 9C Custodial sentence must be imposed for manslaughter by single punch or strike

(1) This section applies to the sentencing of an offender (whether on appeal or otherwise) for an offence of manslaughter if—

(a) the prosecution served and filed a notice under section 9A in relation to the offence; and

(b) the notice specifies, in accordance with section 9A(3), that it relates to this section; and

(c) the notice has not been revoked under section 9A(8).

(2) In sentencing the offender, the court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than 10 years unless the court finds under section 10A that a special reason exists.

Note

Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence.

(3) Subsection (2) applies to the court in sentencing the offender only if the court is satisfied beyond reasonable doubt that—

(a) the victim’s death was caused by a punch or strike that, under section 4A(2) of the Crimes Act 1958 , is taken to be a dangerous act for the purposes of the law relating to manslaughter by an unlawful and dangerous act; and

(b) the offender intended that the punch or strike be delivered to the victim’s head or neck; and

(c) the victim was not expecting to be punched or struck by the offender; and

(d) the offender knew that the victim was not expecting, or was probably not expecting, to be punched or struck by the offender.

(4) The court may be satisfied of the matters specified in subsection (3)(c) and (d) even if the victim was involved in a confrontation with the offender or any other person before the punch or strike was delivered.

(5) The fact that the offender warned the victim of the punch or strike immediately before delivering it does not mean that the victim was expecting to be punched or struck by the offender.

Example

The offender might only warn the victim of the punch or strike so close to the time of the delivery of the punch or strike that the victim is not expecting to be punched or struck by the offender.

(6) Subsection (2) does not apply to—

(a) a person who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958 ; or

(b) a person who is under the age of 18 years at the time of the commission of the offence.

(7) In this section—

strike has the meaning given by section 4A of the Crimes Act 1958.