Life without parole in Australia: Current Practices, Juvenile Sentences and Retrospective Sentencing Reform

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Part II

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KATE FITZ-GIBBON

I. INTRODUCTION

issues that in recent years have animated scholarly, political and community

debate. This debate has largely centred on whether the use of

life sentences, and in particular terms of life without parole (LWOP), are in

breach of international human rights standards which expressly ban inhuman

or degrading treatment or punishment, and promote proportionality in

sentencing. For this reason, the European Court of Human Rights (ECtHR)

has often dealt with issues arising from the imposition and implementation

and mechanisms for recall (Easton and Piper 2012; Stone 2008). This body

of case law has largely focused on adherence to, and potential breaches of

various articles contained in the European Convention on Human Rights

(ECHR), including Article 3 ‘ Prohibition of torture ’ , Article 5 ‘ Right to

liberty and security ’ , Article 7 ‘ No punishment without law ’ and Article

14 ‘ Prohibition of discrimination ’ . In cases involving a juvenile offender

the imposition of a life sentence raises additional and important concerns

relating to the UN Convention on the Rights of the Child.

persons sentenced to life imprisonment have a right to both the prospect of

release as well as a review of sentence, and that failure to provide both of

these rights breaches international standards against inhuman or degrading

treatment or punishment, namely the Article 3 right not to be tortured

an important opening for debate surrounding the viability of LWOP in the

Australian context.

1 For further discussion of Vinter , see Bild (2015); van Zyl Smit, Weatherby and Creighton (2014).

Despite the rising level of debate in Europe, life imprisonment has been

the subject of very little political scrutiny or legal scholarship in Australia

(with the exception of Anderson 1999; 2006; 2012). Terms of life imprisonment

have been implemented (and in some cases mandated) in Australia

since the abolition of capital punishment (Potas 1989) and in recent decades

have been extended beyond homicide offences to apply to non-fatal offences

(for example, rape) and non-violent offences (for example, drug traffi cking).

have continued to impose LWOP sentences with little acknowledgement of

international debate surrounding the viability of such terms of imprisonment.

While this may be expected given the distance between Europe and

Australia, it does illustrate that, at a time when support for this punishment

is dwindling in other Western jurisdictions, it continues to be imposed with

little debate across Australian state and territory jurisdictions.

This chapter provides a timely opportunity for Australia to join the international

debate on life sentencing. In examining LWOP in Australia with a

focus on human rights, it contributes to a broader body of research that has

critiqued the imposition of life sentences from a principled, fair labelling

and proportionality perspective (see Appleton and Gr ø ver 2007; Anderson

2012; van Zyl Smit 1999; van Zyl Smit and Ashworth 2004).

This chapter is structured in four sections.

Section I looks at the practice of life imprisonment in Australia.

Section II examines the availability of LWOP as a sentence across the

Australian state and territory jurisdictions. The second

half of the chapter focuses on two specific issues — the imposition of

LWOP in cases involving a juvenile offender (section III) and mechanisms

of release for life sentence prisoners (section IV). Key case examples are

provided throughout to illustrate the operation of current laws governing

life imprisonment in Australia. The chapter concludes that the imposition

of life sentences should be reviewed and the relevant law reformed to better

align Australian state and territory domestic laws with international human

rights standards.

II. LIFE IMPRISONMENT IN AUSTRALIA

Australia has six states, two territory and one federal criminal justice

systems; each with their own sentencing legislation. Each state and territory

jurisdiction adopts a different approach to which offences attract a

2 Murder (Crimes) Act 1958 (Vic); Murder (Criminal Code) 1924 (Tas).

3 Criminal Code 1899, section 305 (Qld); Criminal Law Consolidation Act 1935, section 11

(SA); Criminal Code 1983 sections 157(1) – (2) (NT).

4 Crimes Amendment (Murder of Police Offi cers) Act 2011 (NSW).

5 This includes one case where the offender (originally sentenced to life imprisonment with

a non-parole period of 25 years) has since been acquitted after spending over eight years in

life sentence, whether such a sentence can be imposed upon juvenile as well

as adult offenders, and whether life imprisonment is mandatory, presumptive

or discretionary for serious offences. Consequently, an analysis of life

imprisonment in Australia is complicated as there is no uniform national

approach. Nor is there, as yet, any national agreement as to how or why a

sentence of life imprisonment should be applied, in what circumstance and

with what opportunities for release. As John Anderson (2012: 748) argues,

‘ variances [in legislation] highlight ambiguities and uncertainties that stymie

any principle application and operation of the sentence ’ across Australia.

As of 30 June 2013, 5 per cent (1,090 persons) of the sentenced prisoner

population in Australia was serving a term of life imprisonment or other

indeterminate sentence (Australian Bureau of Statistics 2013). Research suggests

that the majority are serving a life sentence following a conviction for

murder (Anderson 2012; Potas 1989). This is somewhat unsurprising given

that for the offence of murder all Australian state and territory jurisdictions

prescribe a maximum penalty of life imprisonment. However, the extent

to which this is imposed varies across the jurisdictions. In Victoria and

Tasmania, life imprisonment is the maximum penalty, which can be applied

on a discretionary basis with due consideration given to the individual circumstances

of the offender and the offence. 2 In Queensland, South Australia

(SA) and the Northern Territory (NT) murder attracts a mandatory

life sentence regardless of the nature and circumstances of the offence or

the offender. 3 In New South Wales (NSW), where most offences of murder

attract a discretionary life sentence, in a case where the victim is a police

offi cer the offence attracts a mandatory life sentence. 4 This variance in

approaches to sentencing for murder means that the number of persons

serving a life term for a homicide offence varies considerably across Australian

state and territory jurisdictions, as illustrated in Table 3 .1.

To examine in detail one jurisdiction, between 1990 and 2003 this

approach to sentencing for murder resulted in sentences for life being

imposed on 51 convicted murderers (Public Defenders Offi ce of NSW

2014). 5 Details of these cases and the homicide offenders sentenced to life

are presented in Table 3 .2.

Beyond the offence of murder, while comparable international jurisdictions

largely confi ne the term of life imprisonment to homicide offences, in

Australia other offences also attract a discretionary maximum term of life

6 Crimes Act 1958, section 3211(1)(ba)(i) (Vic).

7 Drugs, Poisons and Controlled Substances Act 1981, section 71(a) (Vic).

8 Criminal Code 1899, section 307 (Qld).

9 Criminal Code 1899, section 349(1) (Qld); Criminal Law Consolidation Act 1935,

section 48(1) (SA); Criminal Code, section 192(3) (NT).

10 Drug Misuse and Traffi cking Act, 1986 (NSW).

11 Crimes Act 1900, section 61JA (NSW).

12 The legislation defi nes ‘ serious child sex offence ’ as rape, incest, maintaining a sexual

relationship with a child and sodomy.

13 The legislation states that the offender is not eligible to apply for parole until they have

served 20 years.

imprisonment, including incitement to murder (Victoria), 6 traffi cking in not

less than a large commercial quantity of a drug of dependence (Victoria), 7

accessory after the fact to murder (Queensland), 8 sexual intercourse without

consent (SA, Queensland, NT), 9 serious heroin or cocaine traffi cking

offences (NSW) 10 and aggravated sexual assault in company (NSW). 11

Beyond these offences, at a time when international jurisdictions (particularly

across Europe) are seeking to eradicate or at least minimise the

use of life imprisonment, several Australian jurisdictions have sought to

expand the range of offences for which a life sentence can be imposed. For

example, in Queensland in July 2012 the state government introduced the

Criminal Law (two strikes child sex offenders) Amendment Act 2012 (Qld),

which provides that an adult convicted of a serious child sex offence, 12

who has previously been convicted (while an adult) of another serious child

offence must be sentenced to a mandatory term of life imprisonment. 13

Australian Capital Territory 50

New South Wales Less than 10

Northern Territory Less than 10

Queensland 63

South Australia Not reported

Tasmania 20

Victoria Less than 10

Western Australia 72

At the Commonwealth level in November 2014, the Australian Government

introduced new counter terrorism legislation that changed the maximum

term of 10 to 15 years ’ imprisonment for certain offences to a life

sentence (see the Counter Terrorism Legislation Amendment (Foreign Fighters)

Act 2014). These reforms were rushed through Parliament with limited

scrutiny or consultation, on the justifi cation of ensuring national security

(Zifcak 2014).

While this chapter does not seek to examine the specifi c merits of the

recent reforms introduced in Queensland or at a Commonwealth level, it

does raise the question of the appropriateness or effi cacy of an increasing

Age range 19–69 years old

Gender Male (n = 49)

Female (n = 2) a

Number of offenders with no prior convictions

(pre-murder conviction)

11 b

Number of offenders sentenced to life for a single count

of murder

18

Means of case resolution c Guilty plea (n = 16)

Verdict (n = 35)

Defence appeal against sentence allowed d

Crown appeal against sentence allowed

2 cases e

3 cases f

Defence appeal against sentence dismissed

Crown appeal against sentence dismissed

15 cases g

1 case

a See R v Knight (2001); R v BW & SW (No 3) (2009).

b In fi ve cases the prior record of the offender was not stated.

c In one case — R v Leonard (1997) — the offender entered a plea of guilty to one count of

murder and was subsequently convicted after trial of a second count of murder. This case is

therefore counted in both categories for the purpose of these two categories.

d In NSW both the defence and the prosecution have the right to appeal against the sentence

imposed. The role of the appellate courts in sentencing appeals is to consider evidence of

legal error but not to apply their own discretion to impose a different sentence where a legal

error has not occurred. As noted by Freiberg (2010: 206) ‘ their role is not to substitute their

discretion for that of the sentencing judge ’ .

e In these two cases the defence successfully appealed the original sentence imposed and the

life sentence originally imposed was overturned in favour of a determinate sentence.

f In each of these three cases the offender was originally sentenced to a determinate sentence,

however, following the Crown ’ s successful appeal against the manifest inadequacy of the

sentence imposed, the offender was sentenced to life. See R v Harris (2000); R v Miles (2002);

R v Hillsley (2006).

g In two of these cases the appeal was lodged against conviction, not the sentence.

reliance on life imprisonment in Australia. This can be dangerous in terms

of mission creep, as cautioned by English legal scholar Andrew Ashworth

(2002: 2):

We should remain aware of the danger that ‘ extraordinary ’ powers which are

supported as necessary for ‘ the fi ght against terrorism ’ may come to be normalised

by being applied progressively to other forms of serious crime.

From a critical perspective these recent reforms provide further justifi cation

for a reconsideration of how widely Australia should be willing to allow

life sentencing to apply. As argued by Anderson (2012: 749), when life sentences

are introduced for political ‘ law and order ’ purposes, too often ‘ fundamental

criminal justice principles, such as proportionality, equality and

human dignity, are relegated or trumped in the political quest for electoral

popularity ’ .

Dissatisfaction with the current implementation of life sentencing legislation

is evident at a state level, where members of the Supreme Court judiciary

Anderson 2012: 758 – 59) Hunt J stated:

Such a sentence deprives a prisoner of any fi xed goal to aim for, it robs him of any

incentive and it is personally destructive of his morale. The life sentence imposes

intolerable burdens upon most prisoners because of their incarceration for an

indeterminate period, and the result of that imposition has been an increased diffi

culty in their management by the prison authorities.

As is captured in this judicial excerpt, the viability of life sentences is particularly

open to challenge where there is no opportunity provided for release

or review. Such sentences can be challenged, not least because they deny the

offender hope of release while simultaneously removing the possibility of

rehabilitation and offering no fi nality to the punishment.

III. LIFE WITHOUT PAROLE IN AUSTRALIA

Most state and territory jurisdictions in Australia permit a sentence of

LWOP to be imposed. Data revealing the number of prisoners currently

serving life sentences without parole across Australia is diffi cult to access,

however, various estimates have been made in recent research. For example:

— As of 2012 in Victoria, there were 12 prisoners currently serving LWOP

(Robinson 2013).

— As of 2012, Tasmania had only imposed a LWOP sentence on one individual;

the Port Arthur gunman, Martin Bryant (Anderson 2012).

— Between 1990 and 2006, approximately 30 persons were sentenced to

LWOP in NSW (Anderson 2006).

In line with sentencing principles in other comparable jurisdictions,

sentences of LWOP are imposed across Australia with the understanding

that, given the gravity of the offence, there is a need to prioritise denunciation,

just punishment and community protection. In this respect, terms of

life imprisonment have come to be associated with the ‘ worst of the worst ’ :

criminals who have been convicted of the most heinous crimes by community

standards, such as mass murder, the killing of a child or the killing of

a public fi gure.

The erosion of an individual ’ s human rights when that person has committed

a serious offence has been extensively documented through the work of

Andrew Ashworth (2002, 2006), as has the curtailment of the presumption

of innocence and the right to a fair trial for persons accused of terrorism,

serious violence and drug offences. Explanations for sentences of LWOP

are typically underpinned by the same justifi cation — that the severity of the

offence committed legitimises the breach of the individual offender ’ s human

right to be free of inhuman or degrading treatment. Ashworth (2002: 1) has

described this as the tension between ‘ the promotion of human rights and

the struggle against serious crime ’ .

Within this punishment discourse the role and importance of the offender ’ s

rehabilitation is largely ignored despite Australia ratifying the International

Covenant on Civil and Political Rights (ICCPR), which, in Article 10(3),

expressly provides that the essential aim of prison should be to provide prisoners

with treatment aimed at their reformation and reintegration. While it

is well established in sentencing research that the principles of punishment

and deterrence are likely to emerge most strongly in cases of fatal violence,

public opinion research conducted in the United Kingdom by Barry Mitchell

and Julian Roberts (2012) revealed that, even in murder cases, there was

some public support for rehabilitation to be considered as the most important

principle in sentencing. To provide a sentence that allows for no meaningful

possibility of future release is to disregard all aims of rehabilitation

and reintegration, and to breach Australian obligations under the Covenant.

In December 2014, the Australian High Court dismissed an application

for appeal of a LWOP sentence imposed on convicted murderer Phuong

Ngo. Ngo was convicted in 2001 for ordering the assassination of a political

rival, Labour Party MP John Newman. In the original sentencing, the NSW

Supreme Court imposed a sentence of LWOP, stating that only a life sentence

without the possibility of parole would meet the ‘ community ’ s interest

2001: para 26, per Dunford J). In making this judgment the court cited an

The maximum penalty of penal servitude for life, meaning for the term of the

prisoner ’ s natural life … is reserved for cases falling within the worst category

14 In explaining which cases would be likely to attract a sentence of life without parole

Dunford J cited ‘ killings which were sex related, thrill killings, killing involving extended suffering

by the victim or extraordinary violence, multiple killings or cases where the prisoner is a

of cases, but it is not reserved only for those cases where the prisoner is likely

to remain a continuing danger to society for the rest of his life or for those cases

where there is no chance of rehabilitation; the maximum may be appropriate

where the level of culpability is so extreme that the community interest in retribution

2001: para 27.) 14

he believed the sentence and the possibility of Ngo ’ s release should be open

to future review, albeit following a ‘ very long ’ period of detention. The case

was subsequently of concern to human rights advocates in Australia who

argued:

As Australians, we claim the moral high ground about our record on human

rights. Yet when it comes to sentencing laws, NSW is now seriously out of step

with the international community and its human rights initiatives. When the NSW

Supreme Court sentences an offender to life without parole or the possibility of

review, then arguably there has been a breach of Article 7 of the International

Covenant on Civil and Political Rights … (Anderson, Wardhaugh and Matas

2013: 11)

Mirroring Article 3 of the ECHR, Article 7 of the ICCPR provides that ‘ no

one shall be subjected to torture or to cruel, inhuman or degrading treatment

or punishment ’ . To date, however, such concerns have proved fruitless

and the community interest in retribution taking precedence over the

individual rights of the offender.

Victorian Supreme Court has handed down terms of LWOP in at least two

cases, with no debate arising over the possible breach of human rights (see

the purpose of this chapter to debate the merits of the sentences imposed

in these individual cases, it is interesting to note that, while the ECtHR has

engaged in a debate on the extent to which LWOP sentences comply with

modern human rights principles, the Victorian courts are yet to fully engage

with the viability of such sentences from a rights-based standpoint.

IV. LIFE SENTENCES FOR JUVENILE OFFENDERS

Under current Australian state and territory legislation the imposition of

LWOP sentences on juvenile offenders (under 17 years of age) is permitted

15 See Criminal Law (Sentencing) Act 1998, section 32A(3) for a list of the special reasons.

(O ’ Brien and Fitz-Gibbon 2016). For example, in NSW, section 61 of the

Crimes (Sentencing Procedure) Act 1999 (NSW) states the circumstances in

which an offender should be sentenced to life imprisonment for murder and

life imprisonment — with or without a non-parole period imposed — is available

in cases involving a young person and can be applied at the discretion

of the judge.

In SA life imprisonment remains the mandatory sentence for murder,

regardless of the age of the offender (Young Offenders Act 1993 (SA)

section 29(4)). While homicide perpetrated by a child is a rare event (Chan

and Payne 2013; Virueda and Payne 2010), as a result of this mandatory

sentence, there are several examples in SA of children serving life sentences

ways this punitive approach to maximum sentencing for child homicide

offenders has been mitigated in SA by the scope permitted in setting the nonparole

period — while adult offenders attract a mandatory minimum term of

20 years imprisonment, there is some discretion, if ‘ special reasons ’ exist,

for a judge to impose a shorter non-parole period (Criminal Law (Sentencing)

Act 1998, section 32A(2)(b)). While the Act does not list age as a ‘ special

section of the legislation has been utilised by judges in this jurisdiction to

justify the imposition of a signifi cantly shorter non-parole period in cases

Court of Criminal Appeal upheld the term of life imprisonment with a nonparole

period of six years imposed on a child who was 14 years old at the

Beyond SA, in Queensland and NT life imprisonment for juvenile offenders

is available to judges at their discretion and can be imposed with or

without a non-parole period (Youth Justice Act 1992 (Qld), part 7(3)(b)(i) –

(ii); Youth Justice Act 2014 (NT), section 82). Given the increasingly punitive

approach to youth justice in Queensland (Hutchinson 2015; O ’ Leary

2014), the availability of LWOP for young offenders is highly concerning

and illustrates the prioritisation of punishment and community protection

over the welfare of the child and the sentencing principle of rehabilitation.

Beyond the individual states and territories, at a Commonwealth level,

terms of federal life imprisonment can also be imposed upon a juvenile

offender. Troublingly, in cases where the court is satisfi ed that ‘ the nature

and circumstances of the offence or offences concerned ’ and the ‘ antecedents

of the person ’ require it, a term of LWOP can be imposed (Crimes Act

1914, section 19AB(3)).

From a human rights perspective, Australia is clearly out of step with

international standards (O ’ Brien and Fitz-Gibbon 2016). As argued by

Agyepong (2010: 84) in her examination of juvenile life without parole

(JLWOP) in the United States:

If the Court had used customary international law and international treaties like

the Convention of the Rights of the Child (CRC), the Committee on the Elimination

of Racial Discrimination (CERD), the Convention against Torture and other

Cruel Inhuman or Degrading Treatment or Punishment (Convention against

Torture), and the International Covenant on Civil and Political Rights (ICCPR) to

evaluate juvenile LWOP, it would have reached the decision that LWOP sentences

for all children are unconstitutional.

Australia has ratifi ed each of these international standards and treaties,

including the Convention on the Rights of the Child, which states that

No child shall be subjected to torture or other cruel, inhuman, or degrading treatment

or punishment. Neither capital punishment nor life imprisonment without

possibility or release shall be imposed for offences committed by persons below

eighteen years of age. (Article 37 para a)

In this respect, and to borrow from Ashworth ’ s (2002: 82) examination of

the integrity principle, Australia ’ s continued legislation of JLWOP undermines

its claim to uphold human rights. The integrity principle includes that

A system which proclaims its adherence to the human rights standards in the

European Convention must not contain any rules, whether introduced by statute

or judicial decision, which are not consistent with the protection of one of the

human rights declared. This is an aspect of the integrity principle — that states

cannot claim to respect human rights if they have laws that are incompatible with

those rights.

By adopting this principle, the very existence of the legislation permitting

JLWOP undermines Australia ’ s commitment to human rights, regardless of

the extent of its operation — namely the number of juvenile prisoners currently

serving LWOP.

Australia stands apart from at least 135 countries worldwide that have

‘ expressly rejected ’ sentencing children to life imprisonment without parole

(JLWOP) (Agyepong 2010; de la Vega and Leighton 2008). Of the jurisdictions

that do permit terms of whole life imprisonment on children, the

United States has the largest population of JLWOP prisoners. However, in

the last 10 years, at least 10 American states have introduced legislation

that either restricts or expressly bans the imposition of whole life sentences

on juvenile offenders (Gottschalk 2012). At a federal level, the 2012 judgment

held that mandatory sentences of LWOP were unconstitutional for juvenile

offenders has further propelled the reduction of JLWOP sentencing in

16 The three other offenders, two male and one female, were aged 22 years old (Stephen

Wayne Jamieson), 15 years old (Wayne Lindsay Wilmot), and 15 years old (Carol Ann Arrow)

at the time of the offence. Wilmot and Arrow were convicted of accessory to murder and sentenced

to maximum terms of nine years and four months’ imprisonment and three years ’ good

behaviour bond (plus 19 months served) respectively.

17 Additionally, psychiatric evidence presented at the trial revealed that Blessington was

illiterate and suggested that he had the mental capacity of a 9-to-10 year old.

that country. This movement towards abolishing JLWOP has bought the

law closer in line with the views of academics who have criticised JLWOP

sentencing practices in the United States in recent decades (for example,

Agyepong 2010; Kennedy 2014; Kloepfer 2012; Mallett 2013; Massey

2006) and in Canada (see Carmichael and Burgos 2011; Ruddell and Gileno

2013). In stark contrast, legislation that permits JLWOP in the Australian

context has received little academic critique or attention.

In October 2014, however, a fi nding of the United Nations Human Rights

Committee (UNHRC) that the life sentences imposed on two Australian

juvenile offenders were in breach of several human rights obligations provided

a timely opportunity to reconsider the injustice of LWOP sentences

for juvenile offenders in Australia (UNHCR 2014). This fi nding confi rms a

fact that has often been overlooked in research on JLWOP: in Australia two

persons currently serving whole life sentences were sentenced as juveniles.

Signifi cantly, this fi nding contradicts a statement often found in research in

this fi eld that the United States is the only jurisdiction worldwide that has

current serving JLWOP prisoners.

In September 1988 Bronson Blessington and Matthew Elliott, along

Balding from a train station at knifepoint, following which they sexually

assaulted and drowned her. At the time of the offence Blessington and Elliott

gravity of the offence, it was decided that, despite their youth, Blessington

and Elliott should be tried as adults. Both children pleaded not guilty

to murder but were convicted following trial and sentenced in the NSW

their ‘ extreme youth ’ , Newman J stated:

In the case of the two youths, Elliott and Blessington, I fi nd this to be a diffi cult

task, diffi cult because of their extreme youth, diffi cult in terms of the principles

of law which I have to apply. To sentence prisoners so young to a long term of

imprisonment is, of course, a heavy task. However, the facts surrounding the commission

of these crimes are so barbaric that I believe I have no alternative … So

grave is the nature of this case that I recommend that none of the prisoners in the

para 5)

18 See O ’ Brien and Fitz-Gibbon (2016) for further analysis of these decisions.

By 1999, following the introduction of the Crimes (Administration of

Sentences) Act 1999 (NSW), the only opportunity that either offender had

for release was if they were granted compassionate release, that is, if they

were close to death or so physically incapacitated that they were no longer

capable of committing a crime. In 2006 the NSW Criminal Court of Appeal

stated that, given the legislative changes ‘ the Applicants [Blessington and

their original sentencing, Blessington and Elliott have submitted a number

of appeals to the NSW Supreme Court of Appeal and the Australian

High Court in an attempt to have their LWOP sentences overturned. Each

of these attempts at the state level has been unsuccessful and in 2007 the

appeal to the High Court of Australia, citing an administrative error, was

The UNHRC (2014: 17) found that given the 1999 Act, the sentences

imposed on both Elliot and Blessington provided no genuine chance of

release and were thus in breach of the UN Covenant on Civil and Political

Rights in that they violated their right against ‘ cruel, inhuman or degrading

treatment ’ . The UNHRC fi nding recognised that the retrospective sentencing

legislation imposed not only removed the hope of release but also denied

both the opportunity to rehabilitate and to have that rehabilitation recognised

through release at a later date. For a jurisdiction to allow the removal

of hope of release for a child sentenced to life, regardless of the offence

committed, is quite clearly out of step with human rights obligations and

international sentencing practice. The UNHRC (2014: 18) fi nding directed

Australia to review its approach to JLWOP nationally. It stated:

The State Party is also under an obligation to take steps to prevent similar violations

in the future. In this connection, the State Party should review its legislation

to ensure its conformity with the requirements of article 7, read together with articles

10, paragraph 3 and 24 of the Covenant without delay, and allow the authors

to benefi t from the reviewed legislation.

The Australian government was given 180 days to respond to the fi ndings

of the UNHRC. Shortly after the UNHRC ’ s fi nding, the NSW Attorney-

General Brad Hazzard provided a comment in the media. Hazzard stated:

The (UN) has failed to acknowledge the human rights of Janine Balding and those

of the community who are entitled to protection. I don ’ t see any sign that the

Human Rights committee weighed up the barbaric end to her life at the hands

of these individuals … Whilst I have considered the Human Rights Committee ’ s

views in regard to the offenders, I am very disturbed it failed to weigh up the

destruction of the human rights of Janine Balding nor did it give much regard to

the necessity to give a clear message of deterrence to others who might consider

this complete disregard of human rights of other individuals in the community

acceptable. (Cited in Fife-Yeomans 2014: 2)

While disappointing for human rights advocates this response is unsurprising

when read in the context of what Ashworth (2002) has conceptualised

as ‘ techniques of avoidance ’ — responses used by government bodies to justify

circumventing human rights in the name of crime and justice policy.

Ashworth (2002: 94 – 96) lists the tendency for government offi cials to justify

a breach of an individual prisoner ’ s rights on the basis of developing

a response to serious crime and ensuring the protection of the rights of

the community. Both of which are implicit in the NSW Attorney-General ’ s

response. While not as fl ippant, the Australian government ’ s response set out

the existing sentencing legislation and did not agree to address the whole life

prison terms imposed on Blessington and Elliott (Australian Government

2015, Response to Communication No 1968/2010). The response noted

that the two offenders, Blessington and Elliott, would have the single opportunity

to apply to the Supreme Court for parole after 30 years imprisonment

and if denied, also have the Royal Prerogative of mercy available to them.

is in breach of the UN Convention on the Rights of the Child — a breach

which should not be overlooked on the basis that no Australian jurisdiction

has sentenced a juvenile offender to LWOP since the sentencing of Blessington

and Elliott. As long as legislation makes provision for such sentences

there is the inherent danger that it will be utilised by the courts and that

Australia ’ s disregard for the human rights of child offenders will be further

extended. This is an unjustifi able risk. As argued by de la Vega and Leighton

(2008: 983) there is no justifi cation for the availability and use of this sentence

for juveniles:

The LWOP sentence condemns a child to die in prison … Imposing such a punishment

on a child contradicts our modern understanding that children have

enormous potential for growth and maturity as they move from youth to adulthood,

and the widely held belief in the possibility of a child ’ s rehabilitation and

redemption.

To disregard the rehabilitative potential of a juvenile offender is particularly

concerning given the body of research that has dispelled the deterrent value

of such sentences, as well as studies that question the level of public opinion

and support for this approach (de la Vega and Leighton 2008; Kubiak and

Allen 2011; Mitchell and Roberts 2013). Beyond deterrence and juvenile

offenders specifi cally, there is also an emerging body of research that critiques

the use of whole life sentences in any circumstances and equates such

terms with the death penalty (see, for example, Berry 2015; Van Zyl Smit,

Weatherby and Creighton 2014).

19 Prior to the 2003 Act, persons sentenced for murder were given a mandatory life sentence

without the possibility of parole.

V. RELEASE FOR LIFE SENTENCE PRISONERS

While Australia has remained relatively silent on the imposition of life

sentences, in various Australian jurisdictions the potential release of highprofi

le life sentence prisoners has engendered community concern, media

debate and, in some cases, political response. Legislation and processes for

determining eligibility for the release of life sentence prisoners differ across

Australian state and territory jurisdictions, particularly where the offender

is not granted a minimum non-parole period. For example, in NSW LWOP

prisoners must serve their sentences for the remainder of their natural lives,

to mandatory life for murder can apply for parole after serving 20 or 25

years. The range of approaches taken across Australia point to the need for

a review of release procedures to determine national best practice and the

implications of divergent approaches.

Of greatest concern here is the introduction of retrospective legislation

that expressly provides that individuals who were originally sentenced to

life with a non-parole period cannot be released due to their perceived

‘ dangerousness ’ and/or ongoing public sentiment. Examples of such legislation

are the aforementioned 1999 NSW Act, which retrospectively

well as a select group of other serious offenders, and the Victorian government

’ s response to applications for parole made by life prisoner, Julian

Knight.

In August 1987, 19-year-old Julian Knight embarked on a 45-minute massacre

in Melbourne (Victoria) killing seven people and seriously wounding

19 others. At the time of the offence Knight had no prior criminal history

and was described by the sentencing judge as ‘ a highly intelligent, educated

offence, he had left the Royal Military College Duntroon where he had been

an Army Cadet. He had enrolled at Duntroon in an attempt to follow in

the footsteps of his adopted father, who had rejected him (Wadham 2014).

Knight later claimed that he was ‘ ill-treated and dealt with unjustly ’ at the

College (Wadham 2014). Knight pleaded guilty in 1988 to seven counts

of murder and 46 counts of attempted murder. At the time, Victoria did

not allow persons to be sentenced to LWOP and consequently Knight was

sentenced to a maximum term of seven life sentences with a non-parole

period of 27 years. In setting this non-parole period the sentencing judge

20 Section 154A of the 1999 NSW Act was also challenged in the High Court by Kevin

stated his belief that, despite the heinous offences committed, Knight could

be rehabilitated over time:

Your prognosis is undoubtedly better than that of someone with brain damage

because it appears that your condition is likely to improve as you mature over a

period of years when you will cease to be a danger to the public. It was common

ground among the doctors that in 20 – 25 years time the degree of change and

therefore the degree of danger which you present can be assessed. In that sense it is

thought that your prognosis is reasonable, particularly as you are bright and have

Knight ’ s non-parole period expired in May 2014. However, in February

2014 the then Victorian Premier, Denis Napthine, introduced new legislation

into Parliament that would ensure that Knight would never be eligible

for release. The resulting Corrections Amendment (Parole) Bill 2014 (Vic)

gained bipartisan support and was rushed through Parliament. Introducing

the new legislation, Napthine stated:

This is guaranteeing that he [Knight] remains in jail until he ’ s dead, or so seriously

incapacitated he ’ s no risk to other people in Victoria or indeed the community.

(Cited in Wadham 2014: 1)

In many ways the 2014 Victorian Act mirrors the legislation introduced in

NSW to prevent Blessington and Elliott, along with a select group of other

Board may only release Knight if it is determined that he:

(i) is in imminent danger of dying, or is seriously incapacitated, and as a

result he no longer has the physical ability to do harm to any person;

and

(ii) has demonstrated that he does not pose a risk to the community;

(iii) is further satisfi ed that, because of those circumstances, the making of

the order is justifi ed.

The narrow terms under which Knight could be released infringe the

right not to be tortured or subject to inhuman or degrading treatment

as they arguably allow neither the hope nor the legitimate possibility of

release. While this chapter does not seek to evaluate the merits of Knight ’ s

application for release, it does emphasise the importance of providing the

possibility of release for life sentence prisoners as well as the need to illuminate

concerns surrounding retrospectively applied sentencing legislation.

Importantly, providing the possibility of release for life-imprisoned

persons should not be misconstrued as adopting a lenient approach, as

21 This refers to four high-profi le male murderers sentenced to life imprisonment with

22 In 2004 the Australian Capital Territory introduced the Human Rights Act 2004 (ACT),

which was amended in 2005 by the Human Rights Commission Legislation Amendment Act

2005 (ACT).

23 Now enacted in Section 74AA of the Corrections Act 1986 (Vic).

argued by Ivan Potas (1989: 7), writing in the Australian context, over

20 years ago:

Such demonstrable compassion should not be viewed as a sign of weakness but

one of strength — a working symbol of a tolerant society which tempers justice

with mercy and gives more than passing recognition to the cruelty and ultimate

futility of imprisonment until death. It exemplifi es a society which places a high

premium on human life, including that of a condemned murderer, and accepts

that over time, even the most violent offender may reform in character, attitude

and behaviour.

Returning to the concept of mission creep, by blurring standards of

acceptable practice, there is a concern that this legislation could be

extended to wider life prisoner populations or that individualised legislation

could become the norm. As Gans (2014: 1) states, if allowed, this

legislation opens the door for ‘ a future Bayley bill, Farquharson bill,

Beyond the importance of hope, the introduction of retrospective sentencing

legislation is also problematic where that legislation has been designed

specifi cally to target a single life prisoner and introduces special measures not

otherwise applicable in that jurisdiction for prisoners seeking release. That

this legislation could be introduced in Victoria is particularly concerning

given that it is one of only two Australian state or territory jurisdictions that

and Responsibilities Act 2006 (Vic) was introduced to protect 20 rights for

all Victorians, including the right to humane treatment when deprived of liberty

(section 22). This section of the Act mirrors that contained in Article 3

of the ECHR, and yet the Victorian government ’ s legislative response to

Knight ’ s eligibility for parole puts it in breach of not only its international

obligations and standards, but also its own domestic law. It is worth noting

that Clause 4 of the Corrections Amendment (Parole) Bill 2014 (Vic) states

that the Charter of Human Rights and Responsibilities Act in Victoria does

the Charter provides that each new piece of law in Victoria must be checked

against the Charter and requires a Statement of Compatibility to tell Parliament

how it relates to human rights, because the Knight legislation provides

that human rights do not apply to that specifi c legislation, a Statement of

Compatibility was not needed for that Act — a move allowed in ‘ exceptional

circumstances ’ where Parliament can override the human rights declaration.

Beyond the human rights perspective, from a practical standpoint the

extent to which a judge in sentencing should be expected to predict the

likely future threat of a serious violent offender reoffending is questionable

in itself. The impossibility of determining at sentencing whether a person

will be a danger to the community in 20, 30 or 40 years is succinctly captured

by Mitchell and Roberts (2012: 124), who argue:

… predicting whether Offender X will be a threat to society 25 years hence is a

notoriously diffi cult decision to make. If it is hard to predict with any certainty

that an offender admitted to custody in 2020 will still constitute a threat to society

in 2040, how much harder is it to predict the prisoner ’ s likely level of threat in

2090, after the prisoner has been confi ned for, say 70 years ?

This becomes an even more diffi cult exercise in the cases of juvenile offenders

who, by reason of their youth are still developing. As Mackenzie and

Stobbs (2010: 133) argue:

How is the court to assess, for example, the potential for a very young offender to

rehabilitate in the context of cognitive and emotional development which is still

somewhat embryonic ?

Consequently, judges should not be expected to assess whether a juvenile

offender is ever capable of suffi cient rehabilitation.

Whether examined from a human rights, proportionality or justice perspective,

it is evident that Australia requires a system of automatic review

for life sentence prisoners. In introducing a system of review for LWOP prisoners,

Australian jurisdictions could take direction from the judgment of the

there must be

a review which allows the domestic authorities to consider whether any changes in

the life prisoners are so signifi cant, and such progress towards rehabilitation has

been made in the course of the sentence, as to mean that continued detention can

no longer be justifi ed on legitimate penological grounds. (Cited in van Zyl Smit,

Weatherby and Creighton 2014: 71)

The judgment proceeded to recommend that a formal review should occur

no later than 25 years after the imposition of the life sentence, and should be

followed by a system of periodic review. In the wake of the Grand Chamber ’ s

judgment, van Zyl Smit, Weaterby and Creighton (2014: 77 – 79) proposed

that a ‘ Vinter review ’ would allow for sentences imposed on life prisoners

to be reviewed to determine if ongoing detention was justifi able, and

that under this proposed system justifi cation for the original life sentence

imposed would also be reviewable at the later date.

practice and proposed) that could be adopted in Australia, including the

Canadian approach to late term review. At present, offenders sentenced to

life imprisonment for fi rst-degree murder in Canada are fi rst considered for

parole after 25 years (although there is proposed legislation currently under

consideration that would extend this to 35 years; see Fine 2015). This system

of review was introduced in 2011 following the repeal of the ‘ faint

hope ’ clause (section 745.6 of the Criminal Code), which provided that life

sentence prisoners could apply for a jury review of their parole eligibility

after 15 years ’ imprisonment (see Roberts 2002; 2009 for further explanation

of the Canadian review approach). While the viability of applying

the proposed ‘ Vinter review ’ or either the current or previous Canadian

approaches to the Australian context would need to be carefully considered,

the very existence of current and proposed models provides a starting point

for a reconsideration in Australia of mechanisms of review of release for life

sentence prisoners.

VI. THE NEED FOR REVIEW AND REFORM

While at present there appears to be little political will or public momentum

decision of the ECtHR as well as ongoing political debate surrounding life

sentences in the United States and Canada should encourage Australian

state and territory jurisdictions to reconsider the viability of this sentencing

option. The use of LWOP in cases involving children undoubtedly

breaches numerous human rights standards and international obligations.

The injustice of JLWOP has long been recognised throughout Europe and

more recently in the United States. That Australia remains one of few jurisdictions

to impose this indeterminate sentence on juveniles undermines the

integrity of Australian criminal justice systems and their approach to youth

justice.

arising across Australian jurisdictions in the use of life imprisonment.

While these are individual examples, the cases demonstrate the current

punitive climate and the extent to which the human rights of life sentence

prisoners continue to be disregarded in the formulation and implementation

of Australian legislation on life imprisonment. While to date the

nation ’ s use of life imprisonment has received relatively little attention,

this chapter demonstrates why attention must be paid and why review and

reform is so urgently needed. A national review of LWOP sentencing in

Australia should seek to implement two key reforms to remedy Australia ’ s

violation of international human right standards: fi rst, the introduction of

legislation that expressly bans a sentence of LWOP from being imposed on

children, and secondly, the introduction of a review mechanism for all life

sentence prisoners. Both reforms are necessary to bring Australia in line

with international human rights standards and the European sentencing

debate.

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TABLE OF CASES

NSWCCA 305

130/10 ( 9 July 2013 )

Court

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