The imprisonment of two teenage convicted killers for life has been ruled inhumane and a contravention of human rights by the United Nations.
The two were sentenced to life imprisonment for the abduction, rape and murder of Janine Balding in 1988, when they were aged just 14 and 16.
The UN has requested that the Australian Government review the case and provide the men, who are now in their 40s, with an opportunity to prove their rehabilitation, so they can have the option of parole.
At the time of their conviction for the crime, one of the most infamous in NSW history, the trial judge recommended that they never be released.
But this recommendation didn’t take place legally until a decade later, when then NSW Premier Bob Carr introduced retrospective sentencing laws.
The laws applied to the two teenagers, as well as another nine inmates.
Janine Balding’s killers were the only two juveniles among those targeted by the laws.
Due to the harsh nature of their sentence, there is no prospect of release or parole for the two, unless they are dying or incapacitated to the point where it would be physically impossible for them to commit a crime.
The application to the UN is their latest bid for parole.
They have brought a number of criminal appeals over the years that have been denied, arguing that they should be allowed the prospect of release if they can demonstrate that they have been rehabilitated.
Prison sentence ruled “cruel, inhumane and degrading”
The investigation was undertaken by the UN Human Rights Committee, which found that the sentence breached a covenant in the Declaration of Human Rights stating that nobody should be subjected to “cruel, inhuman or degrading punishment”.
It also directly contravenes another article concerning the rights of children to be punished as minors instead of adults, and for rehabilitation to be the primary focus.
Although Australia is a signatory to the UN Convention of Human Rights, the finding is not legally binding, and Australian authorities are unlikely to act on it.
But it does raise some important questions, especially when it comes to incarcerating juveniles and whether they should be given a chance at rehabilitation.
How culpable should minors be for their crimes?
The lawyer representing the men in the UN action said that while “no one is overlooking the horrific nature of this crime” they should have been treated as juveniles.
Although the age of criminal culpability in Australia is currently 10, in reality, young people usually aren’t tried as adults until they are aged 18.
The juvenile justice system is set up to deal with the specific needs of young people and the issues they face when they come into contact with the criminal justice system.
When determining criminal culpability in a child under the age of 14, the prosecution needs to prove that the child knew that what they were doing was wrong, and that they were aware of the seriousness of their actions.
Children don’t have the same reasoning capacity as adults, and the juvenile justice system is designed to take that into consideration.
There are a number of key differences between young people who commit crimes and adults, which have been identified by the Australian Institute of Criminology.
These include an increased susceptibility to peer pressure in young people, especially those without a strong family network, and a higher level of risk-taking behaviour.
Young people have also been found to be more susceptible to many of the external factors that can increase their likelihood of committing a crime, including mental health problems and substance abuse.
Even if criminal culpability can be demonstrated among minors, as a rule it is understood that they should be dealt with differently to convicted adults.
This is reflected in sentencing options which are aimed specifically at rehabilitation and support, to help young people avoid getting into a cycle of crime, especially if they are from disadvantaged backgrounds.
According to the Young Offenders Act 1997, children who are alleged to have committed an offence should be provided with the least restrictive form of sanction available.
However, many of the provisions listed in the Young Offenders Act don’t apply if a young person is charged with a crime that resulted in the death of any person.
System overhaul underway
It has also been shown that juveniles can ‘grow out’ of crime and with the right intervention they can have very good prospects of rehabilitation.
Unfortunately this also works the other way, and if they don’t get effective intervention, certain habits and lifestyle patterns can become entrenched.
The current system in NSW is in the process of an overhaul in recognition that harsh penalisation and warehousing of young people in institutions is not reducing the rate of recidivism, while less punitive measures are having a more positive impact on the overall rate of juvenile crime.
According to NSW policies when dealing with minors, the emphasis should be on rehabilitation and reducing the likelihood of recidivism and not on punitive sentences.
The idea of cementing a minor in their cell with no realistic prospect of release goes against the fundamental principles of juvenile justice in Australia, and against the UN-mandated rights of the child, no matter how heinous the crime they committed.
Review of the sentence for Janine Balding’s killers
The UN committee has requested that the Australian Government review the case, and has given the government 180 days to respond.
NSW Attorney General Brad Hazzard has stated that he has no plans to release the two inmates or allow them the option of parole, in spite of the findings.
It is expected that the federal government will take the same stance.
“I don’t see any sign that the Human Rights Committee weighed up the barbaric end to her life at the hands of these individuals,” Mr Hazzard told Fairfax media.