Guest Post: Appeal Court refuses to apply LWOP

A guest post by David Garrett:

Introduction

The Court of Appeal has released its decision in the cases of two murderers who, if “three strikes” (3S) had been applied by the High Court as the law is written, would both have been sentenced to Life Without Parole (LWOP). The two cases are of great interest for a number of reasons: they are the first two such cases to be considered by the Court of Appeal, and the fact situations in both are very dissimilar. One thing applies to both however – and indeed to every other such case yet to come before the High Court – the offenders have benefited from the “manifestly unjust” provision in section 86E of the Sentencing Act.

Far from being rare and exceptional, as parliament clearly intended, it is little short of miraculous that in the five cases of second strike murder to come before the courts thus far, in all of them the Judges have found that to apply the law as written would be “manifestly unjust” and instead imposed “life” sentences with minimum non parole periods.

The facts

Both cases – R v. Harrison and R v. Turner – involved murder as a second strike offence. Other than that, both the offences and the offenders are rather dissimilar.

In R v. Harrison, a patched Mongrel Mob member of some thirty years standing was a party to a murder committed by a gang “prospect”. The victim was probably another gang member, although that is not certain. Although Harrison did not pull the trigger, the High Court found, and the Court of Appeal agreed, that both were involved in a “common criminal purpose”, and therefore although he didn’t actually shoot the victim himself, Harrison was just as guilty as the shooter.

Harrison had a long criminal history including a manslaughter in 1987, a conviction for wounding with intent to injure in 2005, and a conviction for assault in 2007.

His first strike offence – which put him in line to receive LWOP for murder – was what the Crown conceded was a relatively low level indecent assault. Harrison had brushed his hands over the breasts and buttocks of a female cop, and had been convicted of indecent assault. It is probably fair to say that if he was not a gang member, and the victim had not been a cop, he would probably have got away with common assault, or perhaps not been charged at all.

R v. Turner was a nastier case. Turner was a man of 29 who had lived on the streets since he was 15. He had a history of drug and alcohol abuse, and had amassed 110 previous convictions, 22 of them for violence. Although the usual claims of mental illness were made on his behalf, there was no evidence that he was mentally ill, either in the medical or legal senses.

Turner’s victim was a fellow homeless man who was about twice his age. After his arrest, Turner told police that he had visited the victim twice on the night in question, and returned a second time “sober as” with the express intention of killing him. Turner repeatedly stomped on the victim’s head over a period of about 30 minutes; mercifully it appears the victim was dead after the first couple of stomps.

Turner’s first strike offence was much more serious than Harrison’s – an assault with intent to injure inflicted on a former girlfriend. After a prolonged attack, the victim suffered traumatic brain injuries and had teeth knocked out. She was put on life support, and was hospitalized for 14 days. At the time he committed murder, Turner was on parole for the assault on his girlfriend, and had been out of jail only about two months.

The cases in the High Court – reasons for not imposing LWOP

In the High Court, both Harrison and Turner were convicted of murder. In both cases two different Judges declined to impose LWOP for different reasons, although both cited the disproportionality of LWOP. Harrison was sentenced to “life” with a minimum non parole period (NPP) of thirteen years. In his case, the Judge avoided what she acknowledged was the presumptive sentence of LWOP by reference to Harrison’s first “strike” offence – the low level indecent assault.

In her judgment, the Judge opined that parliament cannot have intended LWOP to be imposed for a second strike murder where the first strike offence was “relatively minor offending of its kind.” With the greatest respect to the Judge, I am aware of nothing said in the parliamentary debates from the government benches which supports such a conclusion. On the contrary, the entire regime was based on a list of “strike” offences, all being violent offences, and all carrying a maximum sentence of seven years in prison or more. The idea – of which more later – was that repeat strike offending would attract exponentially more serious punishment. Nowhere in debates was it said that if the first strike offence was relatively low level, the presumption(s) at strike two would change.

It is unarguable that Harrison’s indecent assault was at the lower end of the scale – the type of “drunken grope” which Graeme Edgeler pointed to as being problematic when the Bill was being debated. But again with respect, in my view that is not the point – Harrison was convicted of a first strike offence, and having committed murder as a second strike, there was no good reason not to apply the law as written.

The High Court in Turner found a different set of reasons for not imposing LWOP on him. The Judge focused on the fact that at 29 years of age, LWOP could lead to Turner spending up to 50 years in prison given his life expectancy of 75-80 years. He also said that because of his relative youth, it could not be said that he was beyond rehabilitation, although even the Judge thought his prospects of same very limited.

In both Harrison and Turner the High Court judges referred to the disproportionate sentences which would be imposed because of 3S unless the “manifestly unjust” provision was applied. With the greatest of respect to both Judges – and indeed the five Judge Court of Appeal bench which heard the appeals – if their Honours had read the parliamentary debates carefully, they would have known that it was exactly this disproportionality which was the entire point of the legislation! Instead of a series of incrementally slightly longer sentences for multiple instances of violent offending, 3S quite deliberately imposes an exponential two or three step regime: first offence just as before; second offence sentence to be served without parole; third strike offence to attract the maximum penalty for the offence in question.

Disproportionality was not only quite acceptable to the Nat-ACT government of the day, but was the intention, and this is made very clear if one reads the parliamentary debates, particularly at Committee stage. I recall making this point every single time a Labour member got up to bleat about disproportionate consequences for second or third strike offenders. While it is just possible to put Labour’s bemoaning this point down to ignorance or lack of understanding, one would not naturally come to either conclusion when talking about High Court and Court of Appeal Judges.

The cases in the Court of Appeal

In the Court of Appeal the Crown argued – quite correctly in my view – that the Judge in Harrison had effectively reversed the presumption in favour of LWOP for a second strike murder, and sought to find reasons to justify that reversal. The Court of Appeal did not agree.

Again, and somewhat perplexingly for me, their Honours focused on the disproportionality of the sentence of LWOP and the “life” with a 13 year minimum NPP which would otherwise be, and in fact was, imposed. Again with the greatest of respect to them, it seems to me that their Honours simply “didn’t get it”, or more concerning, perhaps they didn’t want to. As I have already noted, disproportionate sentencing outcomes at strike two and three was the entire point and intention of the legislation. Harrison’s sentence was left undisturbed: life with a minimum NPP of 13 years.

In Turner’s case the Court of Appeal were somewhat more critical of the sentencing Judge, and while LWOP was rejected, the NPP was increased from 15 to 17 years. In Turner the Judge at first instance had taken the view that because the murder in question was not “the worst of the worst”, and the defendant was not clearly beyond rehabilitation, parliament cannot have intended LWOP to be imposed on him.

The Crown argued – quite correctly in my view – that Turner was exactly the kind of violent offender, whose offending was getting exponentially worse, that 3S and its mandatory provisions was aimed at. Preventing further harm to innocent victims by incapacitation – locking them up – was always the primary purpose of the 3S regime. Rehabilitation or deterrence, if they occurred, would be happy bonuses.

The Court of Appeal held that the trial judge had erred in concluding that the presumption of LWOP at stage two for murder only applied to the worst murders. Their Honours went further, and pointed out that at the same time 3S was put in place, another amendment to the Sentencing Act was made which provided for LWOP for “the worst murders” regardless of an offenders strike history. (See s.103 (2A) of the Sentencing Act). That particular amendment – supported by both ACT and the Nats – went unremarked at the time because all the attention was on 3S.

The Court of Appeal also found that the trial Judge had erred in considering Turner’s prospects of rehabilitation, although they found that that error was not “fundamental” to the Judge’s overall conclusion that LWOP should not be imposed. The Court of Appeal Judges focused once again on the “disproportionality” of the LWOP sentence as compared with what would otherwise have been imposed – in Turner’s case, “life” with a minimum NPP of 15 years.

Again, and with the greatest respect to the Judges, I find it hard to follow their reasoning on this point – and it is certainly not supported by anything said in parliament on the government side, even when Simon Power was in charge of the Bill. In short, the Court of Appeal have decreed that, in deciding the meaning of “manifestly unjust” in the 3S context, it is their job to “balance” what is imposed prima facie by s.86E of the Sentencing Act (the section which imposes LWOP for a second strike murder) with s.9 of the Bill of Rights Act (BORA) which precludes “disproportionately severe” punishment.

In making that finding, the Judges purported to find that the intention of parliament was not inconsistent with their reasoning:

“We assume that Parliament, in introducing the new sentencing regime for repeated serious violent offending, intended that any sentence imposed on an offender should not be grossly disproportionate to the circumstances of the offending and the offender contrary to s.9 of the Bill of Rights Act…”

Again with respect, it seems to me that the Judges are taking it upon themselves to decide whether the sentences which 3S gives rise to are in breach of BORA, rather than acknowledging the correct position – that parliament enacted 3S fully aware not only that disproportionate sentences would result, but with that express intention.

Still, the Judges’ discussions on the BORA are not all bad news for the legislators. Although they pointedly left the full discussion for another day, it seems fairly clear that when the issue is addressed fair and square, the conclusion will not be that the legislation itself breaches the BORA. Their Honours noted with approval dicta in other cases which talk of “…conduct which is so severe as to shock the national conscience” and the Canadian test on their BORA: “conduct which outrages standards of decency”

Given that at the time the legislation was passed 87% of the public were in favour of it, it would be hard to argue that any aspect of 3S would meet that extremely high threshold. Although it is of course entirely unscientific, I have found that when the 3S regime is properly explained to them, even those who are generally on the left fully support it. The usual response is in fact “why not just one strike?”

The Crown may appeal the result of either or both cases to the Supreme Court – I have no idea whether they will. My guess is that they will not, but rather save their powder for another day, and a somewhat clearer case – perhaps a Turner type offender who is 45 and not 29. In the meantime, a further four LWOP cases are awaiting hearing in the Court of Appeal. The Judges’ approach to those cases must be consistent with their findings and conclusions made in these two. Given their conclusion that such cases are “intensely factual”, we may yet see an LWOP sentence imposed. Then of course, it will inevitably be off to the Supreme Court for a final decision.

It is extraordinary that in five out of five cases the judiciary has not given life without parole but found all of them would be manifestly unjust. The manifestly unjust provision was intended to be an exception for exceptional circumstances – not used in every case.