30 Mar


party girlWe look at the Safe Night Out Legislation Amendment Bill which was passed by the Queensland Government in an effort to reinforce it’s Safe Night Out plan.  The Safe Night Out plan is said to be aimed at stamping out alcohol and drug related violence.

This legislation sees an increase in policing powers, and introduces new penalties and compulsory community service orders.  A number of changes have been made to legislation including:

  • Criminal Code 1899;
  • Penalties and Sentences Act 1992; and
  • Bail Act 1980.

Criminal Code Amendments

There is an introduction of the ‘coward punch’ offence, namely the offence of ‘unlawful striking causing death’ which carries a maximum penalty of life imprisonment and defined as death caused by the striking to a person on their head or neck. This creates a distinction from other homicide offences in that it excludes the element of intent, meaning that defences such as provocation and accident are unavailable.

A new offence of serious assault against public officers is introduced which essentially mirrors the offence of assault against police officers. Behaviour such as biting or spitting at the officer sees offenders liable to a maximum prison sentence of 14 years rather than the previous 7 years.

Chapter 35A is introduced to address the circumstances of aggravation in relation to particular offences. This amendment changes the way in which offender’s are able to claim the defence of mistake of fact in relation to intoxication, and introduces presumptive factors in relation to adverse effects from intoxicating substances. Proof of intoxication is BAC 0.150 or a failure to provide a specimen. An offender is deemed not intoxicated if they:

a)   Didn’t know they were ingesting an intoxicating substance; and

b)   An ordinary person wouldn’t have reasonably known they were ingesting an intoxicating substance; and

c)   They wouldn’t be intoxicated but for that ingestion.

Penalties and Sentences Act Amendments

A new section has been inserted under the sentencing guidelines in part 9 which alters the sentencing process for liquor-associated offences. This new section leaves no doubt or cause for argument in relation to voluntary intoxication and expressly provides under 9A:

Voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender.

This provides legislative confirmation of existing case law principles, for example in R v Rosenberger; ex parte A-G (Qld) [1994] QCA 488 where it was expressed at paragraph 6: “Ordinary intoxication, whether by alcohol or other drugs, will not mitigate penalty”.

The Court is also required to order offenders to complete community service orders when convicted of certain offences committed when intoxicated and in a public place.

Bail Act Amendments

A new subsection has been inserted which provides a mandatory requirement for a court or police officer who is granting bail to require the offender to complete a Drug and Alcohol Assessment Referral in circumstances where the offender is charged with a “prescribed offence” in a “public place” “while the person was adversely affected” “by an intoxicating substance”.