Cowdery lashes mandatory life for police killers

Anna Patty | SMH | May 23, 2011

NICK COWDERY, who retired as the state's chief prosecutor last month, has accused the NSW Attorney-General, Greg Smith, of reneging on his pre-election promise to end the ''law and order auction'' - the political tradition of promising to increase punishments and fill jails.

His comment was in response to the announcement by the Premier, Barry O'Farrell, yesterday that the government would introduce a bill this week to make life sentences compulsory for people who murder police.

Mr O'Farrell said the Coalition had been committed to the policy since 2002.

Mr Cowdery, who was Mr Smith's boss at the Department of Public Prosecutions, said the law would lead to injustice.

''It is surprising that a lawyer with Greg Smith's experience would support a retrograde move towards mandatory sentencing knowing that it produces injustice and has no effect in preventing crime,'' he said.

Mr Cowdery, who retired as head of the DPP last month, said judges needed discretion in sentencing to ensure the punishment fitted the circumstances of the crime and the criminal. Mandatory sentencing could result in a penalty outweighing the crime.

''When you move to serious offences, the principles of sentencing require that in any particular case a wide range of factors must be taken into account to get a just penalty,'' he said. ''The prescription of mandatory sentences in advance … makes the doing of justice … impossible.''

Mr Cowdery said a mandatory sentencing law was contrary to Mr Smith's pre-election promise to end the law and order auction.

Pauline Wright, chairman of the NSW Law Society criminal law committee, which opposes mandatory sentencing, said Section 21A of the Crimes (Sentencing Procedure) Act already provided a list of aggravating factors for crimes against police or other public officials.

A senior lecturer in criminal law at the University of Technology Sydney, Ian Dobinson, said Division 8A of the Crimes Act had increased penalties for assaults and other crimes against police in 2002, but the previous government did not change the law in relation to murder.

''Under the existing law, judges have the option of sentencing a person to life in prison for the most serious types of murder or awarding a lesser sentence depending on the circumstances,'' he said. ''Judges are easily able to take into consideration the circumstances of a case of murder which involves the killing of a police officer in the course of his or her duty and sentence the offender accordingly.

''To make it mandatory life … is clearly a retrograde step in light of the abolition of mandatory life for murder some years ago. There is no legal justification for it and the minister's proposed change appears to be purely political.''

The president of the Police Association of NSW, Scott Weber, said such sentences were warranted. ''If someone is going to attack a police officer in full uniform that has a firearm … what are they going to do to someone who isn't armed? Life sentencing sends a message … that violence … will not be tolerated.''

The Police Minister, Mike Gallacher, a former policeman, has long campaigned for the new law in response to the murder of officers David Carty in 1997 and Glenn McEnallay in 2002.

Mr Smith said it was directed at people "who kill, having intended to kill or cause serious harm".

''The murder of a police officer is a direct attack on our community and warrants exceptional punishment,'' he said.

The shadow attorney-general, Paul Lynch, said Labor would oppose the mandatory life sentencing legislation because it was ''flawed and failed policy''.

''We think that is likely to lead to fewer convictions,'' he said. ''It would also give no incentive to plead guilty and put the families of victims through even more heartache.''