Making sentences fit some crime

Anna Patty | SMH | May 26, 2011

A series of gunshots fired at close range killed 26-year-old police officer Glenn McEnallay in his highway patrol car after he responded to a report of a stolen car in Matraville in March 2002.

The man who pulled the trigger, Sione Penisini, was sentenced to 36 years in prison, but his accomplices escaped with much shorter sentences after they pleaded guilty to manslaughter. A public outcry followed and the murdered officer's father, Bob McEnallay, described the seven-year jail term handed to one of them as ''an absolute bloody joke''.

But this week he made it clear he does not believe his son's life was worth more than that of any other citizen. He says the state government's plan to introduce mandatory life sentencing for people who murder police is unfair to other victims of serious crime. Bob McEnallay says the life of his surviving son, Troy, not a police officer, should not be valued less than that of Glenn. He believes there should be a minimum sentence for murder, regardless of who the victim is.

''I wouldn't like to think my son's case would attract more attention from the courts than some other citizen,'' he says. ''I know the [government's] intentions are good, but I would rather see a system where the maximum possible sentences for murder are issued for any citizen who is murdered.''

The NSW Attorney-General, Greg Smith, says the bill to be introduced in Parliament this week was developed in response to the murder of police officers David Carty in 1997 and Glenn McEnallay. His office confirms the new law will not apply to accessories to murder, such as the Taufahema brothers who were involved in the McEnallay killing. The new law will mean only the murderer would serve the term of his natural life in prison.

The Premier, Barry O'Farrell, says the Coalition has been committed to the policy since 2002 and will "ensure that those who murder police officers spend their lives behind bars".

But in 2010, Mr Smith denounced those who called for mandatory sentencing as ''rednecks'', who were indulging in a ''law and order auction''. He now says police killings are an exception. ''The murder of a police officer is a direct attack on our community and warrants exceptional punishment,'' he says. ''It sends a serious message of support to our police, but I hope it is never used.''

Mr Smith prosecuted two trials in relation to the murder of Carty and he conducted the committal hearing. ''I gave my blood, sweat and tears to that case in honour of that policeman. I then appeared in the appeals to the Court of Criminal Appeal and the High Court, both of which were dismissed,'' he says.

Mr McEnallay says he can appreciate the support of John Carty, David's father, for the new law, but does not agree that police officers should be treated differently. ''I am very pro-police,'' McEnallay says. ''But I just hope some good legislation comes out of this for everybody.''

Mary Cusumano, whose husband Angelo was shot dead in his Penshurst computer store 15 years ago, leaving her to raise four children on her own, says she is angry with the new law. This week she learnt her husband's murderer is up for parole.

''It just infuriates me,'' she says. ''My husband was a wonderful human being and he served his community. It is as if the government is saying his life is worth less than somebody else's.

''With all due respect to the police, they make a choice to enter that career, with all the risks it involves. They are armed, my husband wasn't. My husband never thought he would go to work and that a person would put a rifle to his head.''

Martha Jabour, who represents the Homicide Victims Support Group, says the new law will divide families. ''If the government is thinking of making it mandatory life, why not mandatory life for every life. I cannot say that one occupation is far more worthy than the life of a nurse or a vulnerable child.

''If my son was murdered I would want his murderer to get life, but my son isn't a police officer.''

The vice-president of the Victims of Crime Assistance League, Howard Brown, says ambulance and other emergency service personnel will not be treated equally under the new law. ''It is a dangerous piece of legislation because it has not been well thought out,'' he says. ''We are told by the judiciary and by politicians that everyone is treated equally before the law. But for some reason they have decided to place police above everyone else, including judges.''

Mark Findlay, a professor of criminal justice at the University of Sydney, says it is ''a pity that the new government's legislative agenda for criminal justice should be opening with what is largely something for appearances''.

''The murder of a police officer should be condemned. But if the families of police officers are meant to be comforted by this proposal it would only be at the level of retribution,'' he says. ''There is no convincing evidence that mandatory life sentences have any significant deterrent effect on those who kill police officers in the circumstances in which such murders take place.''

The Greens MP David Shoebridge says mandatory life sentencing has not worked in other countries and does not produce a reduction in crime. The US Sentencing Commission delivered a report to Congress nearly 20 years ago denouncing mandatory minimum sentences. In its 1991 report, it said mandatory sentencing failed to improve public safety or deter crime.

Nicholas Cowdery, who retired last month as the head of the Department of Public Prosecutions, was involved in the prosecution of McEnallay's killers. He says the new law ''appears to be a purely political exercise to in some way satisfy an obligation to the NSW Police Association.

''I say that because there is no present criminal justice need for this legislation. There are no miscarriages of justice or anomalies that have occurred in the past that justify departure from the existing law. The present law is well capable of imposing a suitably severe penalty on a person who murders a police officer or a person in other categories of employment which have an increase in risk of harm attached to them.''

The existing law allows judges to impose a sentence of natural life for murder, and about 50 people are serving that sentence.