Whilst most people acknowledge a ‘life sentence’ as the most severe penalty that can be imposed in the Australian legal system, many are unaware of the legal implications of ‘life imprisonment’. Does ‘life’ really mean the rest of an offender’s life? In New South Wales it does.
A life sentence is the most severe penalty a court can impose in Australia, following the abolition of the death penalty in 1985. Under NSW legislation, if an individual received a life sentence in NSW, this orders the offender to spend the rest of their natural life in prison unless the court has set a non-parole period.
The natural life sentence was introduced as the maximum punishment in NSW in 1990, following the outrage of ‘Truth in Sentencing’ findings that the average inmate sentenced to life imprisonment served 13 years.
As a punishment, a life sentence can stimulate much controversy within society due to its harsh nature, impact on human rights law and obstruction to rehabilitation; however, it is a punishment only reserved for the most serious offences.
When can a court issue life imprisonment?
The penalty of life imprisonment is reserved only for the most heinous crimes, which overwhelmingly betrays society’s safety and accepted moral standards.
Individuals found guilty of the following criminal offences are liable to a maximum sentence of life imprisonment:
- Aggravated sexual assault in the company
- Sexual intercourse with a child under 10 years of age
- Serious drug trafficking offences.
If you have been charged with one of these offences, or any serious criminal offences, it is necessary you receive expert legal advice to ensure you receive the best possible outcome and avoid the maximum sentence.
Whilst criminal offences such as aggravated sexual assault in a company and sexual intercourse with a child under 10 years of age are liable to the maximum punishment, the likelihood of receiving a maximum sentence of life imprisonment in these circumstances is particularly rare. Under the Crimes (Sentencing Procedure Act) 1999 particularly gruesome offences of murder and serious drug offences may result in the court issuing an offender with a mandatory sentence of life imprisonment.
Mandatory Life Sentences
Section 61 of the Crimes (Sentencing Procedure) Act 1999 introduces a mandatory life sentence for specified offences if the prosecution can establish certain requirements.
In these circumstances, the court’s discretion is restricted and must sentence the accused to life in prison if the prosecution can prove beyond reasonable doubt the following elements,
In the case of murder,
The level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence
In the case of serious drug trafficking offences,
the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence and,
- The offence involved
- A High degree of planning and organisation, and
- The use of other people acting at the direction of the person convicted of the offence in the commission of the offence, and
- the person was solely or principally responsible for planning, organising and financing the offence, and
- the heroin or cocaine was of a high degree of purity, and
- the person committed the offence solely for financial reward
Due to the nature of life imprisonment, Section 61 dictates that the circumstances of the crime be so serious that retribution, punishment, community protection and deterrence can only be met through life in custody and not through any other means, such as a long prison sentence.
This legislation ensures that if someone is found guilty of a serious crime, particularly in heinous circumstances, they are sentenced to life imprisonment. Only the worst crimes will receive a life sentence upon the consideration of personal and subjective circumstances. This is evident in the infamous case of Ivan Milat, who was sentenced to 7 consecutive life sentences without parole for the murder of 7 backpackers whose bodies he disposed of in Belangalo State Forest. He went on to serve the rest of his natural life in prison for his crimes before he passed away in 2019.
Section 61 specifies that its contents are not applicable to offenders under 18 at the time the crime occurred.
Section 19B of the Crimes Act 1900 states that a mandatory life sentence also applies for the murder of a police officer. With reference to this offence, the prosecution must prove beyond a reasonable doubt:
- The murder was related to their work as a police officer
- You knew, or there was reasonable reason to know, the victim was a police officer
- You deliberately intended to kill the police officer or cause serious harm
Factors considered in issuing a life sentence
The NSW legal system acknowledges the severity of life imprisonment as the maximum penalty under criminal law, and as such, Section 61 sets out a two-step process that must be proven beyond a reasonable doubt before an individual receives the punishment.
The Court must first make the finding, based on the facts of the case, that the level of culpability is of an extremity that warrants life imprisonment. In these circumstances, the court must then consider personal or subjective factors that may necessitate a life sentence. This can include considering criminal history, prospects of rehabilitation and threat to the community. This ensures the maximum possible punishment of life imprisonment is the only appropriate sentence for the offender.
Due to this, it is very rare for an offender to receive a life sentence for their crimes; they are more likely to receive an alternate punishment that offers a greater prospect of rehabilitation. This is seen in the sentencing of serious criminal offences, such as murder, which has a standard non-parole period of 20 years.
Can I get out on Parole?
If an individual is sentenced to life imprisonment or life without parole, in NSW, they are to remain in custody for the rest of their natural life without any prospect of parole. In some circumstances, the individual may be sentenced to life imprisonment with a specified non-parole period. After this period, the offender may apply for parole, which can be granted based on the consideration of factors such as age, good behaviour and progress of rehabilitation.
In circumstances where an individual is sentenced to life without parole, their release can only be ordered in very rare circumstances by the executive exercising the royal prerogative of mercy.
Alternatively, an individual can appeal the severity of their sentence, which may result in a lesser sentence, including a non-parole period. If an individual chooses to appeal a life sentence, this matter would be heard in the court of criminal appeal.