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No one would disagree with the headline on a media release issued by Attorney-General Jaclyn Symes and Corrections Minister Enver Erdogan on Tuesday that read: “Keeping Victoria safe from the worst criminals”.
Announcing major changes to Victoria’s sentencing and parole process, the change will ensure Frankston serial killer Paul Denyer, and some of the state’s other worst criminal offenders, will remain behind bars for life under new laws that will also make it tougher to seek parole.
Serial killer Paul Denyer will remain behind bars for life.Credit: Victoria Police
Past the headline, though, the proposals contained in the announcement represent a seriously problematic undermining of the rule of law in Victoria.
The Allan government will legislate to keep Denyer locked up for life, essentially unless he is dying or permanently incapacitated. This is despite an appeal court in 1994 setting a 30-year non parole period in his case.
The families of Denyer’s victims support this move and have indicated it will stop them being retraumatised any time Denyer applies for parole, which is completely understandable. No doubt many victims and families of victims of violent crimes feel the same.
But for an executive government to identify particular individuals as having committed such heinous crimes that legislation must be passed so that it may override the courts which sentenced them is an exercise in dangerous overreach.
The former English judge Tom Bingham, who wrote extensively on the rule of law, argued that for the rule of law to truly work, and for the public to have complete faith and trust in the system, a complete functional separation of the judiciary from the executive is required.
In cases such as these, where a particular offender or series of offenders are targeted by the executive government and the parliament, fundamentally ignores that separation of powers. It is a dangerous practice in a liberal democracy.
But while the announcement has been largely dominated about Denyer as an individual criminal, there are other troubling aspects of the government’s announcement. According to the press release, “legislation will also protect families of other victims of serious and violent crimes by giving the Adult Parole Board the power to declare restricted prisoners – meaning they are unable to apply for release for between five and ten years after serving the non-parole period of their sentence.”
Further, prisoners “serving a life sentence will also be restricted from reapplying for parole after their application has been rejected”.
These are extraordinary initiatives. In our justice system, it is the courts alone (because they are best placed to assess the facts and circumstances of a case), which must be able to set sentences.
What the Allan government’s sentencing process proposals amount to, though, is that any parole period decisions of judicial officers will become optional at best and, at worst, meaningless and open to overriding at any moment.
In 1996, the then High Court Chief justice Gerard Brennan observed that: “Judicial independence is the priceless possession of any country under the rule of law. The public are entitled to insist on its observance by the judges and on its protection by the Parliament and the Executive.”
The idea that a parole authority can override a court’s decision to fix a non-parole period on a person being sentenced is to undermine that “priceless possession.”
What’s more, the Victorian Adult Parole Board itself acknowledges the importance of setting parole periods. It says, “parole is important for hope, self-esteem and the incentive to reform… the fundamental purpose of doing so is not to confer a benefit on the offender: rather it is about recognising that the community benefits from the rehabilitation of offenders.”
Then there is the proposal that prisoners who are serving a life sentence but who are eligible for parole, will only get one shot at it. This proposal is patently unfair and will inevitably lead to injustices.
It is the nature of the parole system that when applications are rejected, a prisoner is incentivised to continue their reformation and rehabilitation process and reapply at a later date. This system is as it should be in a civilised society, where the capacity to reform and rehabilitate should be open to all of us.
What are we to do with a case where a prisoner commits a murder at, say, 18 years of age, but applies for parole some 15 or 20 years later? By this point, they are a very different human being and have likely changed a lot as an individual. Do we really think, as a society, that it is just that they cannot apply for parole again if their first application was denied?
Popular though the announcement may be, the rule of law should be sacrosanct in a democracy. Courts should not have their discretion to accord justice undermined, irrespective of the crimes committed or the criminal responsible for them.
Greg Barns, SC is the national criminal justice spokesperson for the Australian Lawyers Alliance.
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