One of the features of a modern democratic society, seems to be a reluctance to accept failure, particularly when it comes to crime and punishment. Instead we cling steadfastly to the belief that goodness exists in all of us, somewhere.
No crime is too heinous for the perpetrator to be rehabilitated and given parole, so the theory goes. I’m sure many consider it to be more than just a theory. Some even describing it as one of the guiding principles of our justice system. But sometimes a crime is so inhuman and barbaric there can only be the one punishment, that shows neither mercy nor forgiveness. For countries like Australia where the death penalty is not an option, it’s life imprisonment without the possibility of parole. Fortunately, these terrible cases are rare but they inevitably polarize the community and cause angst, bitter debate not to mention a great deal of hand wringing.
There is one such case in Australia at the moment, doing all of that (I’m sure there are cases like this all over the world) in the headlines again, 26 years after it happened. Five homeless teenagers, one of them aged 14, convicted in 1988 of the thrill killing of a 20-year-old woman they abducted at random from a railway station car park. The judge, in sentencing the five teenagers, said the circumstances were so horrific that all them, even the 14-year-old, deserved to be jailed for life without the possibility of parole. In fact the judge made the point, that the accused should never be released from prison, unless they were dying from a terminal illness or so incapacitated they were physically incapable of committing a crime.
Now, all these years later, the case found its way to the United Nations’ Human Rights Committee. The committee, was tasked with examining the case specifically in relation to the youngest of the five accused, two teenagers aged 14 and 16 who were minors at the time of the offences but were sentenced as adults. The UN committee found the sentencing of life imprisonment without parole, breached a number of articles in the covenant on civil and political rights principally that “no one shall be subjected to torture, or to cruel, inhuman or degrading treatment.” Of course the committee made no mention of the cruel, inhuman and degrading treatment the five accused inflicted on the woman they abducted, raped multiple times before tying her up and throwing her in a dam where she drowned.
The committee said the sentence,where it applied to the teenagers, contravened another article in the covenant – that juveniles be punished as minors and that penitentiary systems have rehabilitation as an “essential aim.” It noted that the sentence also breached the UN Convention on the Rights of the Child. Clearly the UN takes the view that no crime is so abhorrent, that the guilty lose their right to parole or rehabilitation.
Lawyers for the two, argued that regardless of the terrible nature of the crimes, they should have been treated as juveniles. An effective and lawful response to children committing these types of crimes requires more than simply locking them up and throwing away the key.
Children are different and the justice system normally recognizes that they have less responsibility for crime and greater prospects for rehabilitation.
And as a society, we accept that children are different from adults. They can’t vote, can’t smoke or drink, or go to war.
The two teenagers, are now men aged in their forties, having served 26 years behind bars. Their lawyers argue they should be entitled to seek parole and have their case determined by a properly constituted parole board.
But let’s just step back for a minute and examine this case in my specially convened court of public opinion.
As I have already said, these two teenagers were part of a homeless gang. On the day of the crime they had spent their day riding around on suburban trains, reading pornographic magazines and showing the pictures to fellow passengers. At one point, one of the accused said, “ How about we get a Sheila and rape her?” Soon after they got off the train at a suburban station and noticed Janine Balding, a bank teller and soon to be married 20-year-old woman walking to her car. They approached her and asked for a cigarette, before producing a knife and forcing her into the back seat of her car, which they then drove away. According to testimony given at the trial, one of the teenagers in the back kept up a low, sing song chant: “Nice night for a murder. Nice night for a murder.” Janine begged them: “Just don’t stab me.” She also kept asking to be dropped at the next corner. She said: “Let me out and I won’t tell.”
Instead, they drove into a park. They pulled Janine out of the back seat, threw her on the grass, all of them taking turns to rape and sodomise her. Then the 16-year-old said we have to kill her. They took rope from the boot of Janine’s car. They tied her feet together with five turns of the cord before passing it up around her neck and down again, so she was effectively trussed up like a ball.
They heaved her over a barbed wire fence and then pushed, dragged and rolled the terrified woman more than 100 meters, across the paddock, and threw her in the dam where she drowned.
At the trial, the judge heard horrific stories about the background of the two youngest of the five accused. Sexually abused at a young age, coming from broken homes, with serious psychological and substance abuse problems. But he determined that while these might have been mitigating factors they were not enough to outweigh the horrific nature of this crime. But his sentence of life imprisonment without parole did not have the necessary legislative backing until the Government passed a special retrospective law, allowing courts to impose that sentence in special heinous cases. The two teenagers became the youngest convicted murderers in Australian criminal history to receive such a sentence.
But now the United Nations’ Human Rights committee wants the Australian Government to review the case and remedy what it describes as a breach of their human rights.
The decision has been met with horror and outrage from Janine Balding’s family, who believe none of the accused should ever be free from prison.
“They knew what they were doing,” Janine’s brother David Balding, said. “They should stay where they are. They have nothing to offer society.
“There has been a ridiculous amount of appeals already. Each one has been rejected and each one has caused this family a huge amount of pain.
“Just when you think it’s over, it’s on again.”
So having heard all of the evidence, the court of public opinion can now retire to consider its verdict on whether the United Nations has a case on behalf of the accused. No problem for me. I know which way I’d cast my vote.