Are The Life Sentencing Laws in NSW too harsh?

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The NSW criminal law system has recently been criticised for arguably contravening Australia’s human rights obligations when it comes to offenders who are sentenced to life imprisonment.

Currently, NSW is the only state in Australia that doesn’t allow for a review of life sentences, or for offenders serving a term of life imprisonment to be eligible for parole.

In spite of suggestions for NSW to be brought in line with other states, this looks unlikely to change in the near future. It has been argued that this means Australia contravenes Article 7 of the International Covenant on Civil and Political Rights (ICCPR), of which it is a signatory.

A life sentence is given to the most serious offenders in NSW, and can be anything from 20 years upwards to the end of the offender’s life.

All other custodial sentences that last for a duration of more than six months come with the option of a non-parole period, which means a definite period during which prisoners will remain in custody.

After this period they may be eligible for parole, depending on their behaviour and the potential risk to the community.

Currently, there are 41 prisoners serving natural life sentences in NSW, which means that they won’t ever be released from prison, and have no hope of parole or a review of their case.

Britain’s legal system has similar provisions to those of NSW, and was last year declared to be in contravention of Article 3 of the European Convention of Human Rights, which details that prisoners should not be subjected to cruel, inhuman or degrading punishment or treatment.

In July 2013, a UK prisoner successfully won an appeal made to the European Court of Human Rights stating that whole life imprisonment with no possibility of a review constituted a breach of human rights.

The UK is now reviewing other similar cases of prisoners sentenced to life with no chance of parole or review.

A recent report prepared by the Law Reform Commission on sentencing law in NSW recommended that the current system for offenders serving life sentences be reviewed and amended.

Under the proposed changes, courts would have the ability to set non-parole periods for offenders sentenced to life, although this would be at their discretion, not compulsory.

The NSW government is due to respond to the report in the near future, but the proposed amendment to life sentencing laws has already been dismissed by NSW Attorney General Greg Smith as not being in line with community interests.

The argument for setting non-parole periods and enabling prisoners serving a life term to have the possibility of release hinges on the idea of rehabilitation, and although some inmates may have committed serious offences, that doesn’t necessarily mean that they would pose a danger to the community if released.

One of the principal intentions of the judicial system in NSW is the rehabilitation of offenders, and under the current system the Law Reform Commission believes that this is not being applied.

With increased awareness of the NSW life sentencing laws and comparisons to the UK, the NSW Government may find itself under increasing pressure to reform the laws to ensure they meet international human rights obligations.

By allowing prisoners serving life the possibility of a review of their case and parole where appropriate, NSW could be on par with the rest of the country and most of Europe.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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