Abstract
Following the recent extensive publicity given to the plight of Katherine man Zak Grieve [Grieve v The Queen [2014] NTCCA 2], it is now notorious that the Northern Territory’s (NT) mandatory murder sentencing laws are the harshest and most unfair in the nation: Since 1 January 1984, when the Criminal Code 1983 (NT) commenced, 63 life sentences have been imposed on offenders convicted of murder in the NT. For the first 20 years of this period, the law prohibited judges from fixing a non-parole term: life meant life. Since 2004, a modicum of discretion has been accorded to the judiciary: non-parole periods may be fixed, provided they are no less than 20 years (or in ‘aggravated’ cases, 25 years), subject to exceptional circumstances that have only ever been found to apply on two occasions.
It was not always so. Extraordinarily, for half a century prior to the Criminal Code, judges had a free hand when sentencing an ‘Aboriginal native’ convicted of murder (everyone else had to be sentenced to death, and, after 1973, to life). As Kriewaldt J memorably put it to a 1959 jury: ‘I have an unfettered discretion to impose any penalty I think proper, from imprisonment for one minute to hanging. Native laws and customs are relevant on the question of punishment …’. [R v Aboriginal Timmy (1959) NTJ 676, 677] In these post-postcolonial days, by contrast, NT judges are prohibited from having regard to cultural practice or traditional law for the purpose of assessing the seriousness of criminal behaviour to which an offence relates. [Crimes Act 1914 (Cth), s 16AA]
The NT’s murder sentencing regime is not only cruel and unusual, it is also ruinously expensive and contributes substantially to this jurisdiction’s crisis of hyper-incarceration. Of the 63 men, women (and yes, children) convicted of murder, six have died (at least two by their own despairing hand), 10 have been fortunate enough to wangle an interstate transfer, 42 remain in an NT prison, and a mere five are out on parole. Australian offenders convicted of murder serve about 15 years on average before conditional release (or at least they did until recently: state parliaments have been ratcheting up minimum terms of late). In the NT, it is about double that. At a cost of $322 per prisoner per day, we in the Territory are currently paying $75 million over the national odds.
It must be accepted that there are few votes in ameliorating the punishment of murderers. However, the current scheme is both unconscionable and unsustainable. The NT government’s announcement on 31 August 2017 that it is reviewing mandatory sentencing is both courageous and commendable. Judicial discretion should be restored, although arguably there may be merit in following the precedent established in New South Wales (NSW), where life does indeed mean life: a judge has the power to impose a sentence of life imprisonment, in which case no non-parole period may be fixed. Such drastic sentences must of course be reserved for the most drastic cases.
The most complex challenge will be to fashion practical and fair transitional provisions, because each of those persons now in the NT, convicted of murder with a non-parole period, would need to be re-sentenced. A similar process was undertaken in NSW some years ago, and indeed to a limited extent, a similar process was successfully undertaken in the NT following the 2004 reforms referred to above. It is a big and difficult job, but it is a job we can do, and one we must do.