The first article I submitted to the Northern Territory’s Law Society journal Balance was in 1999. In that article I called for the reform of the Northern Territory’s mandatory murder sentencing laws, which were then and are still the harshest and most unfair in the nation.
I revisited this issue briefly in my column in the first edition of Balance for 2016. There having since been a change in government, but not the law, it is worth raising the issue once again, as I did in my submissions on the occasion of the ceremonial opening of the Supreme Court in Alice Springs on May 5, 2017.
Continuing publicity in the media regarding the sentencing of Zak Grieve by Justice Dean Mildren in 2013 has focused on the anomalousness and injustice of the current regime. Grieve was sentenced on the basis that he had planned to assist two co-offenders to kill the victim, but he got cold feet and had not been present when the murder was carried out.
Nevertheless, Grieve was unable to successfully call in aid the very limited exceptional circumstances provisions of section 53A(7) of the Sentencing Act, and was sentenced to a longer non-parole period than the principal offender. Although not as well publicised, the third person convicted of murder in that case, Darren Halfpenny, was unable to obtain a reduction of his sentence for his plea of guilty or his offer to give eyewitness evidence for the Crown.
In the circumstances, Mildren recommended that both Grieve and Halfpenny be considered for conditional release some years before becoming eligible for parole, but that decision will be a matter for the executive in years to come. Judges have, from time to time, vented their frustration at the unfairness of these laws.
For example, in imposing a murder sentence in 2001, Justice Steve Bailey said:
“As things stand, there is no incentive and no reason why anyone accused of murder, in the Northern Territory, would plead guilty. The sentence is the same whether a case goes to trial for days, weeks or months on end, or whether the offender admits his guilt, demonstrates true remorse, and puts forward something which can properly be accepted as mitigation … Just as a trial is almost inevitable on a charge of murder in this jurisdiction, so is an appeal almost inevitable. A convicted murderer has nothing to lose and everything to gain by appealing.”
Despite the 2004 reforms, these words ring as true today as they did when they were pronounced. Extraordinarily, and notwithstanding the compelling logic of these observations by Bailey, at least seven of the offenders sentenced for murder in the Northern Territory did so after entering a plea of guilty. None of them was or could be credited with so much as a day less than the statutory minimum on either their head sentence or their non-parole period.
The Northern Territory’s murder sentencing regime is not only harsh and unfair, it is ruinously expensive and contributes substantially to this jurisdiction’s crisis of hyper-incarceration. In 1999, the average period served in Australian prisons by persons convicted of murder before conditional release was around 13 years. The gross disparity between the Northern Territory and the rest of the nation appears to have narrowed somewhat, as interstate politicians have ratcheted up statutory penalties following “my-laws-are-tougher-than-yours” election campaigns.
Now, for example, Queensland also has mandatory life imprisonment with a 20-year minimum non-parole period for murder. But the NT is still in a class of its own: our “exceptional circumstances” provisions for earlier parole release are far more restrictive than those applicable in Queensland, and have only been utilised on two occasions …