Wednesday, June 1, 2011

Murder of Police Officers Bill: an eye for an eye?

Last week, Michael Gallacher finally got the opportunity to fulfill one of his longest-held promises: the introduction of the Crimes Amendment (Murder of Police Officers) Bill. In his second reading speech, the Police Minister, himself a former police officer and 31 year member of the NSW Police Association, spoke of being "delighted" and "extremely proud" to provide for mandatory life sentences to be imposed on persons convicted of murdering police officers.

He commenced by correctly observing that:
Murder currently carries a maximum penalty of life imprisonment. 
Where the victims are police officers, however, the status quo has long got up Gallacher's nose, because in 2011 it remains the case that:
under section 21 of the Crimes (Sentencing Procedure) Act courts retain the discretion to impose a shorter sentence. 
Unashamedly, he announced that the purpose of the the bill was to close this outrageous loop-hole, and:
remove the current discretion of the court in circumstances where a police officer is murdered.
The need for such an amendment was clear:
... the fact that we have had 12 officers killed while undertaking their duty since 1971 just shows us that something finally needs to be done to deter those who would even consider committing such an offence.
Gallacher apparently believes that these 12 police officers were killed by the type who contemplate a 20 to 40 year sentence, figure that if they're caught they'll sit the sentence out easy, and then go ahead with it. These sorts of considerations need to be stopped, according to Gallacher, who like all good politicians, has the solution:
Making sure that those who murder an officer are imprisoned for the term of their natural life is the most effective deterrent.
Because those who would scoff at a sentence taking away the majority, if not the best years, of their adult life would surely not proceed if they had to serve more jail time in their old age.

Gallacher's conclusion was backed up by the citation of several expert studies, which demonstrate the increased effectiveness of natural life sentences as a deterrent. He also cited examples of other jurisdictions where the introduction of mandatory life penalties had reduced the commission of certain offences.

Actually I was dreaming: he did neither of those things. In fact, all he did before the introduction of this bill was consult his gut feeling, and that of his mates in the Police Association. That's right: he looked it up in his gut.

And where has Attorney-General Greg Smith SC been during this process? We might have expected him as the Government's chief spokesman for what is, after all, a major amendment of the criminal law. Perhaps the kind of rhetoric he espoused ahead of the election, including labeling proponents of mandatory sentencing "rednecks", disqualified him from the role. What is now clear is that he no longer opposes the mandatory sentencing rednecks, and has instead joined their rank. Or at least has made an exception in the case of Police. He told the Legislative Assembly that he prosecuted the killers of Constable David Carty, and:
gave my blood, sweat and tears to that case in honour of that policeman.
Smith rebuked Labor's spokesman on Legal Affairs, Paul Lynch, who he said was:
reported as having said that the Government's proposed policy to impose life imprisonment for those who deliberately kill police officers is:
... flawed and failed policy ... We think that [it] is likely to lead to fewer convictions. It would also give no incentive to plead guilty and put families of victims through even more heartache.
Did he ask David Carty's father, John, what he thought? Did he ask his mother, Lorraine, what she thought? 
Ask them what? Whether, in their expert opinion, it was good policy? Whether it would lead to less pleas of guilty and less convictions? Whether it would prevent cops getting killed? Or should we just ask them whether a sentence of life would give them the satisfaction they sought for the loss of their son?

You can fairly guess what most family members would say. In 2006, after the Parole Board released Thaier Sako (who had been convicted only of grievous bodily harm upon David Carty), Lorraine Carty said "how do we appeal our sentence of grief?"

You would understand if Lorraine gave nil consideration to the mitigating factors of those who bashed and killed her son. That's not what one tends to do after a loved one has been deliberately killed. I imagine it could be difficult for a surviving family to want other than to take the life of the murderer. It is for that precise reason, many centuries ago, we took the job out of their hands and left the task of sentencing to Courts.

This bill is rightly called a retrograde move by Nick Cowdery QC, for if we accept, as the Coalition appear to, that the penalty for a crime can rightly be fixed at the maximum short of death, with reference only to the wishes of the victim, their families, or a professional association, we may as well not have Courts at all.

When we remove the veneer, this bill amounts to the Liberal/National Party, in the name of Police and families, taking the law into their own hands. It amounts to a Government hijacking the sentencing process to satisfy a desire for retribution, without any reference to the Courts.

In this instance, Courts will be contracted - no obliged - to carry out the hit, at the directive of government, on behalf of those who seek revenge. As highlighted by Richard Ackland's article last week, the upcoming case of Mahmud will seek to test the constitutional validity of this process. Mahmud's submissions to the High Court, as well as those in response, can be found here.

Gallacher's assertion that the mandatory life penalty provides a more effective deterrent than say a 34 year sentence (Penisini: killer of Constable Glen McEnally) or a 28 year sentence (Gilbert Adam: killer of Carty) is is an attempt to provide a reasonable justification for the bill, but it is no more than an attempt.

His talk of extra protection for Police might pep up the troops, but surely even they know this bill won't matter to a person crazy or determined enough to kill a cop in the first place. What Police do understand is the very basic language their man in Macquarie St speaks to them, namely 'an eye for an eye' for slain cops.  They might well be happy with that. The problem is the next group that want to feel the same way.

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