Northern Territory Second Reading Speeches
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SENTENCING (CRIME OF MURDER) AND PAROLE REFORM BILL 2003
(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)
Bill presented and read a first time.
Dr TOYNE (Justice and Attorney-General): Mr Acting Speaker, I move that the bill be now read a second time. The purpose of this bill is to implement reforms to the current sentencing regime for the crime of murder. The bill achieves these reforms by amendments to the Criminal Code, the Sentencing Act and the Parole of Prisoners Act. Since December 2001, the government has conducted extensive research into the laws governing the penalties for murder, manslaughter and dangerous act, to ensure that the Northern Territory laws in these areas are appropriate and operate effectively. This review has resulted in the development of the bill I am introducing today.
This bill maintains mandatory life imprisonment for murder. It also recognises the previous government’s policy of considering release of prisoners sentenced to life imprisonment for murder after 20 years, with a standard non-parole period that will apply, to be set at 20 years. However, the review considered that a blanket policy of 20 years for review and consideration for release of all murder cases did not go far enough. It did not recognise that many crimes of murder include circumstances of aggravation which must be taken into account.
Together with a standard minimum non-parole period of 20 years, the bill establishes for the first time a higher minimum non-parole period of 25 years. This non-parole period specifically recognises and identifies cases which involve particular circumstances of aggravation that increase the relative seriousness of the offence. The minimum non-parole period of 25 years will automatically apply in cases involving the murder of more than one person; murders which involve sexual assault; murders of children; murders of public officials who are acting in the course of their duties such as police, teachers and nurses; and cases where the accused has previously been convicted of murder or manslaughter.
In addition, the bill recognises that the facts and circumstances of some of these crimes of murder are so heinous that the offender should be ineligible for parole for a much longer period that these minimums or, indeed, should never be released. Consequently, the court will empowered to set higher non-parole periods above 20 or 25 years, or order that an offender never be released. In deciding to set a higher non-parole period than those specified, the court may consider the level of culpability of the offender by looking at any objective or subjective factors; that is, any matters concerning the offender or the factors of the offence itself that make the crime more serious. In making a decision to refuse a non-parole period, the court will be required to consider the level of culpability of the offender and whether it is so extreme that the community interest in the protection of the community, retribution, deterrence and punishment can only be met by a natural life sentence.
The matters I have outlined illustrates some of the deficiencies in the previous government’s policy. Setting 20 years for the Parole Board to review and recommend on all cases, failed to recognise that some cases are more serious that others. It failed particularly to recognise that there will be some cases where an offender should never be considered for release. The bill will also recognise that, in some extremely limited circumstances like that battered wife cases or mercy killings, the court should be able to consider whether to apply a non-parole period of less than 20 years. The government has very carefully scrutinised this part of the bill and developed a provision, the terms of which will ensure it can only be applied in truly exceptional circumstances. The discretion will apply where the court is satisfied that the exceptional circumstances exist that are sufficient to justify a shorter non-parole period than the standard of 20 years.
In determining this question the bill directs the court to the matters which it must take into account in determining the existence of exceptional circumstances and provides that the court cannot take any other matters into account.
I will give greater detail of this provision later in the speech but in summary, to determine whether exceptional circumstances exist the court must be satisfied that a defender is of good character and is unlikely to reoffend and that the victim’s conduct and condition, was such that it substantially mitigated the action taken by the offender.
The government has received advice from a leading Queens Counsel that this provision has an extremely narrow application. Given each of these matters, the government is satisfied that it has got the balance right. It has provided the court with the ability to deal with the full range of cases that might come before it. It allows the court to substantially increase or refuse to set non-parole periods but provides a discretion that can be applied to truly exceptional cases. Those include cases of wives that have been victims of a long history of physical abuse or cases where close relatives assist to end the suffering of a loved one in the last days of a terminal illness. However, the provision is rightly one with very limited application.
This bill also contains important and overdue reforms to the Northern Territory Parole Board. That board will be required to consider applications for release at the end of the prisoner’s non-parole period. Before turning to the detail of these reforms though I would like to make clear the operation and effect of the non-parole period.
Eligibility for parole is of course no guarantee of release. However, there is an unfortunate tendency for the media when reporting on the sentence for a crime to focus on the non-parole period as being the actual sentence handed down by the court and which will be served by the prisoner. This is not the case. A non-parole period is the period of time during which time the offender is not eligible for release from prison. It establishes only the earliest time at which the offender may be considered for release.
The fact that a court sets a non-parole period does not mean that a prisoner will automatically be released on parole at the expiration of that non-parole period. It is the function of the Parole Board under the Parole of Prisoners Act to determine the suitability of individual prisoners for release at the expiration of that period of time.
Eligibility for release of a person convicted of murder from custodial portion of their sentence is dealt with at two separate stages in the criminal justice process. First it involves the court setting a non-parole period or indeed declining to do so in a worse case scenario. Secondly it involves quite separately the Parole Board at the expiration of the non-parole period considering whether the prisoner is suitable for release. This two stage process is particularly important to crimes that carry a lengthy sentence of imprisonment because it is very difficult for a court so far out from the consideration of release, to determine questions of rehabilitation and community safety.
The function of the Parole Board in determining the suitability of a person for release ensures that these elements are more properly and accurately accessed at the time of eligibility. In other words, the parole system allows for a review of the offender’s case after he or she has served a significant part of a custodial sentence, for the purposes of deciding whether he or she should be released on parole at that stage.
It is clear the setting of a non-parole period does not have the significance in terms of release or length of sentence that is sometimes suggested by media reports. Nor does the granting of parole mean the end to the sentence or the end to the punishment for the crime. Parole should not be regarded as a get out of jail free card. The offender on parole remains a prisoner subject to the conditions of the parole order and can be returned to prison for a breach of the parole conditions.
All parole orders are subject to a condition that the person be under supervision on parole, by a parole officer and that they must obey all reasonable directions of the officer. Standard conditions are generally specified in the order. For example, the place of residency of the prisoner during the parole may be ordered.
As I have said, parole orders may be revoked or cancelled where there is a breach of parole conditions and a person returned to prison. In the case of murder the prisoner continues to serve a life sentence but in a non-custodial manner when released on parole. As they are subject to a mandatory life sentence, parole continues for the rest of their lives and they can therefore be returned to prison at any time if there is a breach of their parole conditions.
I turn now to the role of Parole Board and the reforms being proposed by this bill. The Parole Board will have the responsibility for considering parole applications from prisoners who have served their minimum of 20 or 25 years or higher non-parole periods.
The Parole Board is currently constituted by the Chief Justice, the Director of Correctional Services and four other members appointed by the minister. The board considers a broad range of material when deciding whether or not to release a prisoner on parole. Each case is considered on its individual merits. The documentation always includes a parole report prepared by the assigned parole officer, an institutional report prepared by prison staff, a police record of prior convictions, and a transcript of the Supreme Court sentencing details if the prisoner was sentenced in that court. In addition, the Parole Board may consider other relevant reports, including pre-sentence reports, psychological and/or psychiatric assessments and reports, medical assessments and reports, assessments and reports from substance misuse programs and treatment facilities, legal opinions, reports from interstate services, letters from the prisoner and letters from the victim or victim’s representative.
The Parole Board does not automatically grant parole to those who are eligible. During 2002, 205 prisoners were considered for parole. Of these, 103 or 50.24% were granted parole. Forty prisoners, 19.51%, were refused parole; 34 matters, or 16.59% were deferred; and 28 grants of parole, 13.66%, were declined by the prisoner. Considering these statistics, there is absolutely no reason to suggest that when a court sets a non-parole period, this will result in the release from prison of a person who has been convicted of murder simply at the expiration of their non-parole period. It sets only the very earliest date at which the person may be considered by the Parole Board for parole. As part of the reforms being introduced by this bill, membership of the Parole Board is being increased to 10, with new members including a police officer, Victims of Crime representative and community representatives.
When considering parole applications from prisoners convicted of murder, the board will be constituted by all 10 members, with a quorum of eight, up from the current six members. A unanimous decision is required for the decision to release a prisoner, and the bill will require the Parole Board to consider the public interest, including the protection of the community as a matter of primary importance when considering the application. For all other parole applications, the board will be constituted by six members, including the new police officer position and victims of crime representative, with a quorum of four. Other reforms will require the board to keep a record of its reasons for accepting or rejecting a parole application.
Before I turn in to the detail of the bill, I will briefly refer to the circumstances that led to the review of this important area of law. The review was prompted by the consequences of former government’s policy of considering release of prisoners sentenced for murder after 20 years. Under that policy, the Parole Board was to review and make recommendations on those cases after 20 years had been served, with a review every three years thereafter.
Cabinet was then to consider all recommendations made and the prisoners retained their rights to petition the Administrator to exercise the Royal Prerogative of Mercy for release. It is clear that the former government’s policy was deficient in a number of other aspects, not least of which being that it did not make any distinction between different cases of murder.
Section 162 of the Criminal Code Act provides for the crime of murder. That provision covers a wide number of different circumstances, as would be expected. It covers deaths caused within an intent to kill, but it also applies to acts where the intent was to cause not death, but grievous harm to the victim. A form of constructive murder also exists in which the act causing death is not required to be accompanied by an intention to kill or even to harm and does not require the offender to foresee that death was a possible consequence of their act. Liability for this form of murder might arise, for example, where death occurs as a result of an inadvertent act committed in the course of a robbery.
It is accepted that crimes of murder have different degrees of heinousness and culpability, notwithstanding the tragic consequences of each case. Some crimes of murder result from conduct of such cruelty and brutality and cold-bloodedness, that there can be no doubt they deserve a natural life sentence, both to punish the offender and to provide for the protection of the community. Other crimes of murder may be committed in circumstances which indicate the community’s interest in ongoing retribution and punishment is not so great. The former government policy of applying a 20 year review period to all cases did not recognise those distinctions. This inadequate response will be overcome by the provisions in the bill, which will create a 25 year minimum non-parole period for identified circumstances, together with new provisions to enable the court to order higher non-parole periods, or order that particular prisoners should never be released. These provisions represent a significant tightening of the position of the Northern Territory and ensure that an appropriate minimum imprisonment period, or an order of no release, is available for offenders convicted of more heinous cases of murder. The penalty for murder will, of course, remain at mandatory life sentence in all cases, recognising that murder is the most serious of crimes.
It also became clear during our review that the offence of manslaughter may be operating as a potential escape route for court cases which should be treated as murder cases. Since 1989, there have been 27 murder convictions and 99 manslaughter convictions. In some cases of manslaughter, the facts were quite disturbing, and some appeared markedly similar to cases which had resulted in a murder conviction. The offences of manslaughter and dangerous act are now being looked at in detail, and I hope to be in a position to be able to report back on this area of criminal law early next year.
I turn now to the substance of the bill. The reforms being implemented by this bill are achieved through amendments to the Criminal Code, the Sentencing Act and the Parole of Prisoners Act.
This bill amends section 164 of the Criminal Code by providing that the court may, in accordance with new section 53(a) of the Sentencing Act, set a non parole period for the crime of murder. The mandatory penalty for that crime is retained as a sentence of life imprisonment. As introduced in 1983, when the parliament passed the Juvenile Justice Act, the court retains the power in the case of a juvenile to set less than life imprisonment as the head sentence. A standard minimum non-parole period of 20 years is prescribed. This represents what is to be considered to be the minimum period of imprisonment before there is eligibility for parole for a crime of murder in the middle of the range of objective seriousness for that offence. There will also be cases where there are factors associated with the crime that should warrant an automatically increased minimum non-parole period.
This bill identifies particular factors that aggravate the seriousness of the offence and set, for those cases, an non-parole period of 25 years. These factors include cases where the victim is in a particular category of occupation, which provides for the safety and protection of other members of the community, and which, as a consequence, may place them personally at risk. Where such persons have been targeted as a result of their duties, or the offence occurs while they are carrying out their duties, this factor is considered deserving of a heightened non-parole period. This provision will apply to victims who are police officers, emergency service workers, correctional services officers, judicial officers, health professionals, teachers and community workers in particular are part of this identified class of victims.
Similarly, the taking of the life of a child, one of the most vulnerable members of our society, is deserving of recognition of increased objective seriousness. Crimes of murder that are occasioned also by sexual assault, are also recognised of deserving an increased non-parole period. Where a victim has been sexually assaulted and then killed, either as a result of the assault or some subsequent act or omission, I believe that that factor places the offence, quite rightly in the minds of the community, in a more serious category of offence. Likewise, an offence in which the victim is killed, and then post mortem their body subjected to sexual degradation, is considered to be a more serious example of the crime of murder. Multiple convictions and prior convictions for homicide are also recognised as being aggravating factors that should increase the minimum non-parole period.
Although we have identified some particular examples of aggravating factors, it is not possible to anticipate all the circumstance and facts relevant to each and every crime of murder. There will be some offences for which a natural life sentence without the possibility of parole is necessary to be imposed. The court is, therefore, empowered under the amendments effected by this bill, to refuse to set a non-parole period, thus providing for a natural life sentence for cases deserving of this punishment. The court is also empowered to increase the non-parole period beyond the 20- or 25-year period specified, where it considers that the objective or subjective factors associated with the crime warrant the setting of a higher period. Consequently, it should be clearly understood that the aggravating factors identified in the proposed new section 53A do not limit the court to only imposing a 25-year non-parole period. That period may be subject to increase, or the court may decline to set a non-parole period if satisfied, as I have previously said, that the measure is required in all the circumstances of the case.
I have just canvassed particular factors that aggravate the crime of murder and for which the community may view as deserving of a higher non-parole period. Recognising that a variety of factors or circumstances will affect the relative seriousness of the offence means that we must also appreciate that there will be some cases where the facts and circumstances actually lessen the culpability of the offender. I have no doubt that the community recognises that there are some exceptional cases where the same level of prolonged incarceration is not necessary, either as a punishment or for the protection of the community as a whole.
An example of such cases that come readily to mind are those of spouses - most frequently women - who have endured years of physical and emotional abuse and violence from their partner. Many times these cases are accompanied by sexual abuse, both of the spouse and sometimes also of the children in the relationship. It is easy for those who have never experienced this level of traumatic abuse to say that that woman should just walk away and leaver the perpetrator of the abuse. The reality is that a person who has been made vulnerable by abuse over an extended period of time will frequently be incapable of exercising free will in this way. They may be too afraid to leave; threatened by acts of violence if they do so. In some cases, they will have been brought back to the relationship by violence when they have sought to leave. Many stay in a misguided attempt to sustain and nurture their family unit, becoming caught up in a cycle of remorse being expressed by the perpetrator, promises to make changes, and then reversion to the old pattern of abuse. In some tragic cases seen in Australia, the spouse will eventually be able to take no more and may kill the perpetrator of the violence against them.
Of course, according to the law, if they do so when under physical attack they may be able to successfully raise the defence of self-defence. However, the reality that is, stacked up against a physically stronger person, they may not be able to defence themselves. The opportunity only comes when the person is himself vulnerable: asleep or unconscious from alcohol intake. In such cases, the defences that might ordinarily be applied to cases involving violence by the victim - provocation and self-defence - may not succeed. The spouse will be convicted of murder and, without the ability for the court to take into consideration the history of the conduct of the victim, that person will have the same eligibility for release as the minimum non-parole period, as for all other persons convicted of that crime.
Likewise, cases have arisen in Australia where an act of killing has taken place in the context of sexual abuse by the murder victim against the offender’s child or other family member. Whist not condoning in any way these actions, it may be that, in some cases a parent who strikes out at a perpetrator of the sexual abuse or is convicted of murder, may be deserving of some understanding expressed in the non-parole period that they receive.
Other tragic cases may include what the community commonly refers to as ‘mercy killings’; cases where the person - often a close relative to the victim - at the victim’s request and in circumstances where the victim is experiencing intense suffering as a result of illness, assists the person to end their life.
I do not say that, by recognising these examples, that retaliation or vigilante activity is in any way condoned. The focus for consideration of the sort of cases that I have mentioned is clearly on the conduct of the victim and the extent to which that conduct might explain the conduct of the offender and diminish their culpability. Nor do we condone ‘mercy killings’, but we recognise that there is a very different motive involved in such killings than in other examples of the crime. Those cases arise out of a wish by the offender to alleviate the sufferings of the victim, and occur with the consent of the victim. I am not suggesting here that such consideration applies to a person who unilaterally determines to take the life of their partner or close other without that person’s expressed indication that in such circumstances they would not wish to continue their life.
That example of the offence does not fall into the same category for consideration for a lesser non-parole period because it does not involve any actions or conduct on the part of the victim.
We have not proposed that these examples of the crime should receive a lesser sentence. Like all other crimes of murder they will receive the same sentence, that of life imprisonment. However, we do not believe that the community would see offences such as these examples I just mentioned, as deserving of the same periods of incarceration as an offender who has raped their victim and/or subjected them to the most unimaginable levels of violence before the act results in their death.
Cases such as the ones I have outlined are not ones where the community is at risk or where the offender is likely to repeat violent conduct.
Under the proposed new section 53a of the Sentencing Act the sentencing court will be able to set a shorter non-parole period than the 20 year period where the court is satisfied exceptional circumstances that would justify a shorter period exist. As I have already outlined, this provision is an extremely limited one which contains a number of constraints on the exercise of the discretion by the sentencing court.
As the standard non-parole period represents a non-parole period for an offence in the middle range of objective seriousness for the offence, any offence of which a non-parole period of less than 20 years is set, could not be more serious than an offence in the middle of the range of objective seriousness and can reasonably be anticipated to be one which would be in the lower end of the range of objective seriousness.
In addition, in order to exercise the discretion the court must be satisfied that the offender is a person of otherwise good character and be unlikely to reoffend. This will include consideration by the court of any prior convictions or other relevant matters. Clearly offences such as traffic matters or minor property offences will have little relevance to the determination of a lower non-parole period for the crime of murder, where as prior convictions for offences of violence will be relevant matters for determination.
Whether a record is significant or not may depend also on the date of the offences. Offences committed only new may have little significance in respect to a middle aged offender. These matters are only capable of being determined by the court on an individual basis.
Further, the court must also be satisfied that the conduct or the conduct and condition of the victim substantially mitigates the conduct of the offender. This is not just a requirement for the court to consider that the conduct of the victim may have had some effect on the offender, it goes much further than that, requiring the court to consider whether the conduct in question – such as that I have just described – was such that it provided a substantial lessoning of the offender’s culpability.
No other matters, other than these requirements, may be taken into account by the court in the determination of the existence of exceptional circumstances.
The bill also amends the Parole of Prisoners Act by making alteration to the constitution of the Parole Board to ensure that it is representative of our community in the Northern Territory. The membership of the Parole Board is increased to 10 members. The Chief Justice or his or her nominee will be the Chair of the board. The Director of Correctional Services and a member of the Police Force nominated by the Commissioner of Police and a person with medical or psychological qualifications, will all be appointed.
A person specifically appointed to represent the interest of victims of crime will be required and the other five members will be required to be persons who reflect as closely as possible the composition of the community at large and whose membership must include women and persons of Aboriginal and Torres Strait Islander decent.
When the board is to consider matters in relation to the parole of a person convicted of murder, it will be constituted by all the members of the board and will require a quorum of eight members, including the Chairman. On consideration of an application for parole by a person convicted of murder the Parole Board must be unanimous in its decision. For all other matters, the board will be constituted by six members, comprising the Chairman, the Director of Correctional Services, the police nominee, the Victims of Crime representative and two other members. A quorum of four, including the chair, will be required. Decisions of the board on these matters will be determined by a majority of votes, with the chairman having a deliberative and a casting vote.
The Parole Board must obviously consider the public interest in cases where it is determining the release of a person who has been convicted of murder. New Section 3G(b) of the Parole of Prisoners Act identifies key features of public interest to which the board must have substantial regard. These are: the protection of the community; and the likely effect on the victim’s family if the person is released.
Protection of the community is to be the paramount consideration. In addition, in recognition of the composition of the Northern Territory community, if the offender is an Aboriginal or Torres Strait Islander person who identifies with a particular community, the Parole Board must take into account the likely effect on that community of the person being released on parole. In order to ensure accountability when the Parole Board determines eligibility for parole of convicted murderers, the board will be required to record the reasons for their decision.
It is necessary for there to be a transitional provisions to allow for the application of non-parole periods to prisoners serving existing life sentences. The bill therefore provides that the sentence of a prisoner currently serving life imprisonment for a crime of murder will include a 20 year non-parole period or, in the event that a person is serving sentences for two or more convictions of murder, a 25 year non-parole period will apply.
However, once again, we recognise not all cases may be the same. Consequently, the Director of Public Prosecutions will be empowered to make application to the court for cases which deserve a greater non-parole period, or indeed should have a non-parole period refused and therefore a natural life sentence confirmed. In considering these cases, the bill requires the court to fix a non-parole period of 25 years in cases involving circumstances of aggravation, which I have already outlined in respect of new cases bought before the courts. Like with new cases, the court will also be empowered to order a higher non-parole period or that the prisoner should never be released.
Appeals from decisions on these applications will be provided in the same way as appeals on sentence provided in Part 10 of the Criminal Code.
These amendments maintain a strict sentencing regime with a mandatory life sentence for the crime of murder, but they overcome the simplistic approach contained in the policy of 20 years as a review date for all cases of murder. These reforms recognise that not all cases of murder are not the same, and that tougher responses are required in a number of cases.
Establishing a 25 year minimum non-parole period for cases with recognised factors of aggravation, and empowering the court to set higher non-parole periods or order that a prisoner never be released are an essential elements of ensuring appropriate community safety and protection.
At the same time, changes to the Parole Board also ensure that community safety is preserved, and that the community of the Northern Territory will continue to send a strong message that violent behaviour is never condoned and will be punished accordingly. Mr Acting Speaker, I commend the bill to honourable members.
Debate adjourned.
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