PEOPLE will be found to be "intoxicated" under the NSW government's proposed new one-punch laws if they have a blood-alcohol level equivalent to those of people charged with high-range drink driving offences.
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Premier Barry O'Farrell on Thursday tabled the Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014, which defines intoxication as a blood-alcohol concentration of .15 - three times the .05 level used to measure low-range drink driving offences.
Mr O'Farrell said the purpose of the bill was "to make our streets safer by introducing new measures to tackle drug and alcohol-related violence".
"The NSW government has heard the community's call for action. We are committed to continuing to address the drug and alcohol-fuelled attacks on our street and the increase in violence that is used in those attacks."
The bill is not restricted to one-punch offences and applies to death from brawls more generally.
The bill says that there will be a "conclusive presumption of intoxication if the accused has more than .15 concentration of alcohol following a breath or blood sample analysis".
No limit has been set for drugs, meaning that any level of drugs found in the system may constitute intoxication.
The legislation creates a separate offence with a minimum mandatory sentence of eight years and a maximum penalty of 25 years in jail for an assault causing death if the offence is committed by an adult when intoxicated - whether under the influence of alcohol or drugs.
A person who is not intoxicated will face a maximum penalty of 20 years in jail for hitting a person and causing their death.
"There is no research on the link between blood-alcohol concentration and violence ... some will be unconscious at this blood level and most will be very drunk"
In both cases it does not matter whether the victims died as a result of the injuries received directly from the assault or from hitting the ground or another object.
Alex Wodak, the emeritus consultant for the Alcohol and Drug Service at St Vincent's Hospital in Sydney said the .15 blood-alcohol level was the level at which car drivers start to be charged with "high-range prescribed concentration of alcohol".
"That comes from a huge body of research into blood alcohol and risk of a car crash. But this figure has been plucked out of the air," Dr Wodak said.
"There is no research on the link between blood-alcohol concentration and violence.
"Some will be unconscious at this blood level and most will be very drunk.
"But some drinking, say, three bottles of wine per day might be little affected by it."
Dr Wodak said that, because some people had higher alcohol tolerance levels than others, there was a risk that some innocent people might be found guilty. A high blood-alcohol concentration may not necessarily be linked to violent actions.
The proposed law requires that a breath test be taken within two hours of the alleged offence.
A blood or urine sample can only be required within four hours after the alleged offence.
A person may be taken and detained at a hospital for the purpose of taking a blood or urine sample.
Professor Alex Steel, a criminal law expert from the University of NSW, said the new offence was broader than for just dealing with "coward punches". It includes everyone who causes a person's death as a result of a fight.
"If an intoxicated person is goaded and provoked into a fight – even if they don't throw the first punch – they could be facing mandatory imprisonment," he said.
"The problem with mandatory imprisonment is that its only real effect is injustice.
"If the accused deserves eight years' imprisonment, the court system will impose that anyway, either at trial or on appeal.
"So the legislation only forces these terms when the courts think that it would be wrong to impose that sentence."
Professor Steel said that, if the Parliament thinks the courts are too lenient, it should appeal and seek a guideline judgment.
"That approach worked well for drink driving," he said.
NSW Greens MP and justice spokesman David Shoebridge said the legislation would cause injustice when it likely becomes law on Thursday.
"It is astounding that MPs first received a copy of this bill at 9.45am today and will be voting on it in a matter of hours," he said.
"Regardless of extreme provocation, regardless of intent and even if the consequences were wildly unlikely, there will be an eight-year minimum jail term."
