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Canberra Today 3°/9° | Saturday, April 13, 2024 | Digital Edition | Crossword & Sudoku

Why mandating criminal sentencing is bad policy

 

Keli Lane has been denied parole after being found guilty in 2010 of murdering her baby daughter. (Dean Lewins/AAP PHOTOS)

“What’s the point of denying parole when there are no family or friends of baby Tegan? Keli Lane’s suitability for parole should depend upon other factors,” writes legal columnist HUGH SELBY.  

“No body means no parole” is a current example of poor inquiry, poor debate and poor legislation.

Hugh Selby.

Just how poor was well illustrated by the NSW Parole Authority’s decision last week to refuse parole to Keli Lane, convicted in late 2010 for the 1996 murder of her two-day-old infant Tegan.

Ms Lane claimed to have given the infant to its father – a person who has never been found. Tegan’s body, too, has never been found.

Ms Lane would have been eligible for parole in May, but for a 2022 change to NSW law that mandates “no body, no parole”. 

That NSW law reflects interstate provisions, such as Queensland.

There, the Corrective Services Act 2006 followed a report that recommended a “no body, no parole” policy. 

The report acknowledged that: “Withholding the location of a body extends the suffering of victims’ families and all efforts should be made to attempt to minimise this sorrow.”

The report claims: “Such a measure is consistent with the retributive element of punishment. A punishment is lacking in retribution, and the community would be right to feel indignation, if a convicted killer could expect to be released without telling what he did with the body of the victim.”

The policy of “no body, no parole” is attractive through the families and friends prism, as the following three examples show:

  • The notorious case of northern beaches high school teacher Chris Dawson – finally convicted in 2022 – who has never revealed what he did with his wife Lynette’s body.
  • According to mainstream media reports, now former NSW Senior Constable Beau Lamarre-Condon at first refused and then told investigators where to find the bodies of the two men he is charged with murdering.
  • The arrested suspect for the disappearance of Ballarat mother, Samantha Murphy, has, so far, not been helpful about where her body can be found. Perhaps there are good reasons for his failure – but we don’t know. However, if he is convicted and fails to say where to find her body then he won’t be paroled according to the Victoria Corrections Act.

But who are dead baby Tegan Lane’s family and friends? Her mother is in prison, no father has come forward.

The NSW Parole Authority refused Ms Lane’s application for parole. They had no choice – because of changes in the NSW Law which mirror the Queensland and Victorian provisions.

Inserted into the NSW Crimes (Administration of Sentences) Act is the following:

 135A 

(1) This section applies to an offender… serving a term of imprisonment for a homicide offence and—

(a) the body or remains of the victim of the offence have not been located…

(2) …the Parole Authority must not make a parole order directing the release of an offender… unless it is satisfied the offender has co-operated satisfactorily in police investigations or other actions to identify the victim’s location….

The Parole Authority noted: “Parliament intended that [if] the Authority cannot reach the prescribed state of satisfaction in relation to co-operation by an offender… it will have no discretion to order that offender’s release. Such intentions are clear from… the Second Reading Speech in the Legislative Assembly in which s 135A was introduced. In… that speech, the Hon Peter Poulos stated: ‘The bill will introduce stronger “no body, no parole” laws…, similar to those already found in a number of other Australian jurisdictions. This will be achieved by removing the [Authority’s] discretion to grant parole unless the relevant offender has co-operated satisfactorily with authorities to identify the location of their victim’s remains [emphasis added]’.”

Mandating actions in the criminal justice system is bad policy, no matter how good it is as political grandstanding. 

The poor outcomes from mandatory sentencing (requiring judges to impose specific sentences, be that for minor crimes or life sentences with no prospect of parole), and “no body, no parole” are telling illustrations of why vesting experienced, dispassionate decision makers with discretion is essential.

Remove discretion and palpable injustice will follow. It is never possible to foresee all the future possibilities.

What’s the point of denying parole when there are no family or friends of baby Tegan? Ms Lane’s suitability for parole should depend upon other factors. 

It is not hard to envisage situations where a person is convicted of murder, but by the time they are eligible for parole all relevant family and friends have died. It then being many years since the crime it should be left to the parole body to assess the relevance of “no body” to its task.

Mandatory “no body, no parole” is also unjust when there has been a miscarriage of justice. 

Tasmanian Sue Neill-Fraser is an example. Wrongly convicted of the murder of her partner Bob Chappell she was paroled in 2023.

She was fortunate that the Tasmanian Parliament has not removed the discretion from their Parole Board, because Bob’s body has never been found. 

Let’s hope that those parliaments who have erred will amend their unwise laws: let today’s discretion, not yesterday’s baying, be the guide.

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

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Ian Meikle, editor

Hugh Selby

Hugh Selby

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One Response to Why mandating criminal sentencing is bad policy

Curious Canberran says: 25 March 2024 at 2:48 pm

I appreciate the views and opinions put forth by Hugh Shelby.
On occasion I find there is something I had not considered that
he points out which may give me a refreshed perspective on a matter.

However, I can also find my position remain unchanged and not swayed by any
arguments put forth to the contrary – as is the case here.
I for one, consider that punishment precedes rehabilitation.
Yes, you are behind bars for reasons that reflect the crime committed.

I in no way support that an individual can have the consequences
of committing a crime diminished or negated just because a victim has no
family/friends (or if they died by the time of parole). So in this instance
it appears Keli Lane will serve her entire sentence.
I also refute this to be seen as “political grandstanding” when I believe it
generally reflects community expectations.

Reply

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