Inquiry into the Crimes Amendment (Mandatory Life Sentences) Bill 1995 - Submission by the Public Policy Assessment Society Inc.

Background

By section 431A of the Crimes Act 1900 (NSW), the punishment of penal servitude for the term of a person's natural life may be imposed only for the offence of murder and certain offences under the Drug Misuse and Trafficking Act 1985 involving large commercial quantities of prohibited drugs or prohibited plants (but not cannabis plant or cannabis leaf). The insertion of proposed section 431B into the Crimes Act 1900 would specify the circumstances that would result in the imposition of that punishment.

In the case of murder, under proposed subsection 431B(1), a life sentence would be imposed if "the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."

In the case of drug offences involving large commercial quantities of heroin or cocaine, under proposed subsection 431B(2), a life sentence would be imposed if the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and:

. the offence involved a high degree of planning and organisation and the use of other people acting at the direction of the person convicted of the offence, and

. the defendant was solely or principally responsible for planning, organising and financing the offence, and

. the heroin or cocaine was of a high degree of purity, and

. the defendant committed the offence solely for financial reward.

The court's discretion under section 442 of the Crimes Act 1900 to consider the imposition of a lesser punishment would not be affected by these amendments in the case of murder but that discretion, as well as a corresponding discretion under section 33A(2) of the Drug Misuse and Trafficking Act 1985, would be displaced in the case of the drug offences if the requisite criteria were established.

Comment on Proposed Subsection 431B(1)

If in a case of murder it is established that the community interest in community protection can only be met through the imposition of a sentence of penal servitude for life, the Society questions why this should not be conclusive in deciding the sentence. In such a case, why must the court also satisfy itself that the community interest in retribution, punishment and deterrence also can only be met through the imposition of that sentence?

Apart from this basic policy question, the Society believes the text as it stands would be likely to convince courts that a life sentence was never appropriate, for two reasons:

(i) a court would be likely to adopt the attitude that "the community interest in retribution" is never such that it "can only be met through the imposition of" a sentence of penal servitude for life; and

(ii) the words "can only be met" imply a very severe test before a life sentence is deemed appropriate - requiring (for example) that no other means of community protection (however expensive or burdensome to the community) is possible.

Thus, to provide any useful guidance to courts, the text of proposed subsection 431B(1) should be rephrased to read:

A court is to impose a sentence of penal servitude for life on a person who is convicted of murder, if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in

. retribution, or
. punishment, or
. community protection, or
. deterrence

can best be met through the imposition of that sentence.

Comment on Proposed Subsection 431B(2)

The Society doubts that this provision would be of any benefit, other than in conveying the message that the government is serious about drugs. We know of no evidence from other countries that enforcement activity focusing on "Mr Bigs" of the drug supply chain has had a beneficial effect on street-level drug abuse or crime by drug abusers.

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October 1995. The Public Policy Assessment Society Inc.
Box 395 WODEN ACT 2606 Australia.

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