Life Sentences in NSW: “Life Meaning Life”

At the conclusion of their highly publicised Supreme Court trial, Roger Rogerson and Glen McNamara (pictured) were found guilty and subsequently sentenced to life imprisonment without parole for murdering Sydney student Jamie Gao.

Gao was shot dead in 2014 after Rogerson and McNamara lured him into a storage shed with promises of payment for drugs. The duo killed Gao in cold blood in order to steal almost 3kg of the drug ice, with an estimated market value of nearly 10 million dollars.

After murdering Gao in cold blood, the two men dumped his body into the sea. The body was found less than a week later wrapped in blue tarpaulin and inside a surfboard bag, floating in open water.

During sentencing on 2 September 2016 in the Supreme Court of New South Wales, Justice Bellew said the murder was of “an exceptionally high degree of seriousness in offending – brutal in its execution and callous in its aftermath.”

Life Sentences in New South Wales

A life sentence is the heaviest penalty a Court can impose in Australia. In New South Wales, Section 61 of the Crimes (Sentencing Procedure) Act 1999 (“The Act”) stipulates the following in relation to the offence of murder:

“A court is to impose a sentence of imprisonment 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, punishment, community protection and deterrence can only be met through the imposition of that sentence”.

It is important to note that for cases of murder, aggravated sexual assault in company, sexual intercourse with a child under 10 and drug offences carrying a maximum penalty of life imprisonment in NSW, life means life; in other words, the offender is ordered to spend the rest of their natural lives behind bars, unless a non-parole period is set by the court.

This change was brought in as part of the ‘truth in sentencing’ reforms in 1999, before which the average time spent in prison for a life sentence was 13 years, causing public outrage.

Given the severity of a life sentence, Section 61 requires that the nature and circumstances must be so serious that retribution, punishment, community protection and deterrence can only be met through a sentence of life, as opposed to, for example, a lengthy prison term.

Satisfying the Court that a Life Sentence is Warranted

Before a life sentence can be imposed for murder, the prosecution must first satisfy the Court beyond reasonable doubt that Section 61 is applicable.

Recognising a life sentence as the ultimate sanction, the government has through Section 61 set a very high hurdle, essentially limiting the circumstances in which a life sentence can be imposed for the offence of murder to the absolute worst cases.

The Section sets out a two-step process. Firstly, the Court must make a finding on the facts of the case that the level of culpability is so extreme that a life sentence is warranted. If so satisfied, the Court must then consider whether the offender’s personal or subjective circumstances are capable of negating the need for a life sentence. In doing so, the Court can take into account factors such as age, history and prospects of rehabilitation.

The case law, however, recognises that certain cases can be so extreme that personal or subjective circumstances become irrelevant. In the case of Miles [2002] NSWCCA 276, for example, the Court said:

“……in some cases falling within the category of the worst class of cases, there is little utility in considering the prospects of rehabilitation and the subjective circumstances generally. In other words the appalling objective circumstances may completely overwhelm whatever subjective circumstances there may be, which include the prospects of rehabilitation.”

Previous Cases in New South Wales

Although rare, it is certainly not the first time the Supreme Court of NSW has imposed a sentence of life imprisonment.

What can be seen from the case law is that the Court has reserved the ultimate sanction of life imprisonment to truly heinous cases such as that of R v Gonzales [2004] NSWSC, in which the offender Sef Gonzales was sentenced to three life sentences for murdering his mother, father and sister. Equally cold blooded was the case of R v Walsh [2009] NSWSC 764 where the offender murdered his wife and grandchildren, and also received a life sentence.

Various Views in Relation to Life Imprisonment

Looking to other jurisdictions, some have argued that a life sentence is too extreme of a penalty regardless of the seriousness of the offence committed.

One high profile example is the case of Jeremy Bamber. In January 2012, Jeremy Bamber and two other British prisoners serving life terms argued before the European Court of Human Rights that life imprisonment amounted to ‘degrading and inhuman treatment’ in violation of the European Convention on Human Rights.

After having lost their initial argument, the men appealed in 2013 to the European Court’s Grand Chamber. On appeal, the Chamber decided in their favour, ruling that for a life sentence to be compatible with the European Convention on Human Rights, there had to be both a possibility of release and a possibility of review in relation to the sentence.

Whilst life imprisonment is an extreme measure only applicable in the most heinous of cases in New South Wales, it is hard to imagine a case more serious than that of Rogerson and McNamara – two men who killed in the pursuit of profit and then callously dumped the body at sea. For such men, both the law and community expectations demand a heavy penalty.

Whilst some might argue that life imprisonment is too extreme, others would say that those who kill in cold blood and in such clinical and calculating fashion should forever lose any chance at returning to the community.

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About Wali Shukoor

Wali Shukoor is a Senior Criminal Lawyer at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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