Law reform for mandatory life sentencing without parole for rape and murder will help end violence against women

If you could change the laws to prevent another woman being raped and murdered like Aiia Maasarwe, Eurydice Dixon, Jill Meagher, or my sister, Anne-Marie Culleton, what law would you propose?

NSW Review of Sentencing for Murder and Manslaughter

In my 39 page submission ¹ to the NSW Review of Sentencing for Murder and Manslaughter on 7 February 2020, I called for the crime of rape and murder to receive a mandatory life sentence with no parole.

I also called for rape and murder to be a stand alone crime to reflect its gravity and to enable specific sentencing.

For example 19C (Mandatory Life Sentences for rape and murder).

This would bring the crime of rape and murder in line with 19B (Mandatory Life Sentences for murder of police officers).

The sentencing act also needs to be framed in a similar way to 19B to ensure that as per section (2), (4) and (5), the life sentence is for the term of the person’s natural life, it is mandatory and no other law or act can authorise a court to impose a lesser or alternative sentence.

This also means that ‘mitigating factors’ would not apply to the crime of rape and murder just as they do not apply to the murder of a police officer.

This blog post provides an overview of key arguments presented in my submission in response to the Consultation Paper and my preliminary submission ² on 8 March 2019 to inform the Consultation Paper.

I believe it is time to bring back life sentencing where life means life in prison.  Rapist murderers should never get a second chance to rape and murder. Our society needs a zero-tolerance policy towards rapist murderers and this should be reflected in sentencing.

Strong sentencing for the crime of rape and murder will send a strong message in society and help to reduce all violent crimes against women.

I am advocating for this law reform as the sister of Anne-Marie Culleton who at just 20 years-old was raped and murdered by Jonathan Bakewell who broke into her flat in Darwin in the middle of the night when she was sleeping on 23 February 1988.

Rape and murder is a gender crime which strikes fear into the hearts of all women in the community.

The brutal rape and murder of my sister while she was asleep in her flat is every woman’s worst nightmare.

Despite Bakewell being given a life sentence with no parole in 1989, the laws in the NT were changed to grant parole to life sentence murderers in 2003 and he was released in 2016 in South Australia where he  had been transferred while in prison to be near his family.

Since his release Bakewell has breached parole four times for taking drugs – the same drugs he took the night he raped and murdered my sister – yet the South Australia parole board keeps releasing him. This was despite a 53 page submission I made to the parole board, members of the public coming forward with new information, letters to politicians, questions asked in parliament and a media campaign. These pleas fell on deaf ears.

Bakewell was released for the fifth time on 18 October 2019. I am horrified about this and am convinced from the new information that I received from members of the public during my media campaign that Bakewell is as dangerous today as the day he raped and murdered my sister.

No woman in Australia is safe from Bakewell. He had breached parole and was on the run from South Australia when he travelled to NSW, QLD and the Northern Territory where he raped and murdered my sister.

Sex offender rehabilitation programs don’t work

My call for life sentencing for the crime of rape and murder is also driven by the fact that there is no guarantee that prison rehabilitation works. In fact there is plenty of evidence that sex offender rehabilitation programs don’t work.

One prime example is rapist murderer Terrence Leary. 17-year-old Vanessa Hoson was asleep in her family home in Sydney in 1990 when Leary broke in, attacked and murdered her. ³

Prior to his parole release after his murder of Ms Hoson, Leary had been deemed a “model prisoner” who had ‘ticked all the boxes’ for his rehabilitation.  The then Attorney-General Greg Smith reported “ Mr Leary completed programs to address his drug and alcohol issues and sex offending behaviour prior to his release on parole.” ⁴

He even completed a university degree in prison – a Bachelor of Arts studying sociology and anthropology. Despite Vanessa Hoson’s family’s protests, Leary was released on parole and in 2013 tried to rape and stabbed a woman at a bus stop. The victim is only alive today because the police arrived on the scene in time to save her. When the police arrived Leary was in a frenzy and attacked them too.

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Yet, incredulously, Judge Syme, in sentencing Leary for his rape and knife attack on the woman at the bus stop, still took into account Leary’s rehabilitation programs in prison before his parole release – when evidently the prison rehabilitation programs did not work.

This was despite the judge saying Leary was still a danger to the community because no one could be sure he wouldn’t suffer another outburst.

“His unpredictability makes his management in the community a challenge,” ⁵ Judge Syme said.

“Not all forms of antisocial behaviour can be treated through therapy.”

Yet Justice Helen Syme still did not give the maximum penalty for this second attack – Leary’s sentence was 11 years and three months and he will eligible for parole in 2024.

It is critical to note, if a so called “model prisoner” like Leary could repeat his crimes once released into the community, this is clear evidence that sexual offending rehabilitation programs do not work. It is also evident that psychiatrists and psychologists who also have input to parole release applications cannot predict human behaviour.

Sex offenders are faking their way through programs

ABC Journalist Jill Meagher’s rapist murderer Adrian Bayley admitted to faking his way through a sex offenders program to get early release. ⁶

Bayley is a prime example of a repeat violent sex offender who escalated to murder. Bayley had a long history of rapes spanning more than 20 years.  

If Bayley admitted faking his way through a sex offenders program to get early release, this begs the question, how many other prisoners have faked their way through sex offenders programs?

Even the experts question the effectiveness of sex offender treatment programs

A report prepared by the Australian Institute of Criminology for the Office of the Status of Women, “Recidivism of Sexual Assault Offenders: Rates, Risk Factors and Treatment Efficacy” found the effectiveness of treatment of sex offenders to be questionable:

“While it is assumed that treatment will reduce the risk of sexual recidivism, the evidence is ambiguous. There have been few systematic evaluations of treatment programs and no definitive results regarding treatment efficacy.” ⁷

Sex offender recidivism rates demonstrate that rehabilitation programs do not work

The countless examples of sex offenders repeating their crime after being released from prison point to the fact that sex offender rehabilitation programs do not work.

While there has also been little research on Australia sex offender recidivism rates, in the Australian Institute of Criminology report ⁸ one study of 402 prisoners found 27% were found to have at least one previous conviction for a sexual offence.

The Australian Institute of Criminology report also stated that sex offender recidivism rates are underestimated due to the lack of recorded data for this crime. One reason for this is that repeat sexual offenders may be identified for the principal offence for which they were convicted, which may not be the sexual offence.

Also, importantly, according to a Australian Bureau of Statistics (ABS) Personal Safety Survey 2016, the majority of women (9 out of 10) who were sexually assaulted did not contact the police (87% or 553,900). ⁹

When you consider that of those rapes that are reported, only a small percentage proceed to trial, it makes estimating sex offending recidivism rates problematic.

What is clear from the existing evidence is that sex offender rehabilitation programs do not work. Hence why we need to err on the side of women’s safety. No risk to a woman’s life is an acceptable risk.

The lack of research to track murderers repeat offending

There is a glaring lack of research to track repeat offending of murderers let alone rapist murderers. In a Centre for Criminology article “Counting the risk of murderers re-offending” by Roderic Broadhurst, Professor of Criminology and Ross Maller, Professor of Probability and Statistics at the Australian National University, the authors note that no state correctional authority in Australia has undertaken studies of repeat offending of homicide offenders. ¹⁰

So on what basis is the judiciary making sentencing decisions to grant parole to rapist murderers?

Lifelong harm to victim family members

A mandatory life sentence without parole for the crime of rape and murder will serve to recognise the life lost of the victim and the lifelong harm inflicted on their loved ones.

As a murder victim family member, who at 19 years old, lost my 20 year old sister Anne-Marie Culleton, when was raped and murdered in her flat in 1988, the harms I have suffered have been lifelong and will continue to be.

To assist the NSW Sentencing Council reviewing my law reform submission, to understand the lifelong impacts of murder on family members, I shared some of the impacts on my life.

I shared how as a 19 year old university student, the rape and murder of my sister impacted me to the extent that I did not just lose my sister, I lost my youth, my future, my dreams, my idealism, my peace, my sense of security and my joy. I felt like the light had gone out of my world.

I was traumatised, devastated and heavily weighed down by grief and the senselessness of it all. Anne-Marie was a beautiful, talented, 20 year old young woman with a bright future ahead of her. With dreams she never got to realise.

Anne-Marie’s rape and murder in her home at night is every woman’s worst nightmare and it became mine. I lost my sense of personal security and safety and suffered from post-traumatic stress. I became anxious if I was at home alone, even during the day. I suffered nightmares and would often stay awake until dawn – then I would feel safe enough to sleep for a few hours. This went on for a number of years.

The trauma of Anne-Marie’s murder also impacted my relationships. After finishing university I never returned to Darwin to live as I could not bear the memories, or the societal stigma, and it was hard to even go home to visit.

To think of the nature of her death causes me great anguish. This was made worse by seeing the police video re-enactment of Anne-Marie’s murder broadcast on television. It tortures me to think about the terror and suffering that my sister endured at her death. I wish I could erase the images from my mind. 

To this day, watching the news and seeing crimes of rape and murder triggers memories of Anne-Marie’s murder, and my heart goes out to the victims and their families, thinking of their agony. It is why I am fighting for law reform.

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The impact of judicial decisions on the murder victim family

Over the 32 years since my sister’s rape and murder, I have experienced the impact of the whole spectrum of judicial decisions: of justice being served with the original sentence of life without parole; of justice being ripped away with a law change to enable parole; of the offender’s appeals all the way to the High Court of Australia to get his non-parole period reduced; his release on parole; the offender breaching parole four times; my unsuccessful fight to have his parole revoked and the offender’s latest release for the fifth time on parole in October 2019.  Even if Bakewell’s parole is finally revoked, I face a lifetime of fighting, because he can reapply for parole every 12 months.

The impact of parole release on the murder victim family

In my submission I outlined the impact of Bakewell’s parole release. That I did not initially fight his parole release due to the re-onset of PTSD. But that after his two parole breaches for taking drugs – the same drugs he took the night he raped and murdered my sister I felt I had no choice but to fight.

I outlined my nine month battle in 2019 to have Bakewell’s parole cancelled; a battle which, as stated earlier in this post, was unsuccessful.

I am devastated by the constant stream of murder victim families like mine who are forced to fight the parole release of their loved one’s rapist murderer. It should not be up to the murder victim families to have to fight to keep the community safe. And to suffer the compounded trauma of being unsuccessful and living in perpetual fear the offender will repeat their crime. This is a cruel and intolerable burden on victim families.

In my submission I referenced campaigns and petitions to fight the release of rapist murderers Michael Guider, Neville Towner, Dante Arthurs and Terrence Leary, but there are many more.

We have a national crisis of violence against women

I am also calling for law reform to protect women. To prevent more victims of rape and murder.  We have a national crisis of violence against women.

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• 1 in 5 women in Australia are sexually assaulted. ¹¹
• One woman a week is murdered. ¹²
• We don’t have statistics for the rape and murder of women because the government doesn’t collect them – because rape and murder is not a specific crime. It needs to be.
• One in four women don’t feel safe walking the streets in their local area alone at night ¹³
• One in four women don’t feel safe waiting for public transport after dark ¹⁴
• One in 10 women don’t feel safe home alone at night ¹⁵

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The Personal Safety Australia 2016 survey with statistics above was undertaken before the rape and murder of Eurydice Dixon in 2018 and Aiia Maasarwe in 2019 – crimes which shocked and outraged the nation and have made women feel even more unsafe.

As the men and women of Australia have clearly demonstrated through their outrage and nationwide public vigils in response to the rape and murder of Aiia Maasarwe, Eurydice Dixon and Jill Meagher, we have a national crisis.

When women don’t feel safe walking the streets at night, we have a national crisis.

When women don’t feel safe being alone at home at night, we have a national crisis.

Our justice system is broken

When rapist murderers do not receive the available maximum sentence of life with no parole, our justice system is broken.

When rapist murderers are allowed to appeal the severity of their sentence, our justice system is broken.

When rapist murderers who received the maximum sentence of life with no parole, have their sentence redetermined to grant them parole, our justice system is broken.

There is little chance today for the crime of rape and murder to receive a life sentence without parole

 A life sentence for the term of the offender’s natural life is not a realistic prospect for a rape and murder case today.

The recent sentencing in Victoria of Codey Herrmann in October 2019 for the rape and murder of Aiia Maasarwe powerfully exemplifies this.

The judge, Elizabeth Hollingworth said the crime was not deemed to “warrant the imposition of the maximum penalties”.

Yet this was, by any community standard, a horrific crime. It involved a man brutally attacking, raping and murdering a young woman walking down a public street. It involved the rapist murderer also setting fire to parts of her body in an attempt to destroy DNA evidence.

This rape and murder of Aiia Maasarwe sparked an outpouring of public outrage, not just in Melbourne, but in vigils across the country including in NSW.

Even the Prime Minister, Scott Morrison described the murder as “sickening”.

“This was a disgusting crime. It is sickening this sort of violence against a woman was committed in Australia,” he said on Twitter. ¹⁶

Yet the judge did not deem it to “warrant the imposition of maximum penalties”.

The fact that Justice Hollingsworth made this judgement clearly demonstrates how broken our justice system is, and the depths of injustice to which our justice system has plummeted in relation to the crime of rape and murder.

Sentences for rape and murder are becoming progressively weaker due to current sentencing practices

Despite community outrage and Australia wide vigils in response to the recent rape and murders of Aiia Maasarwe and Eurydice Dixon, and the call for life sentencing, the prosecution did not call for a life sentence with no chance for a non-parole period.

Nor did the judges apply that sentence despite having the power to do so.

I believe this is due to the fact that the hands of the judges are tied by the practices of precedent and comparing sentences. So even if a judge did apply the maximum sentence of life without a chance of parole, it would be swiftly undone by the subsequent criminal appeal that would find that the judge ‘’erred’’ in relation to practices of precedent, comparing sentences etc.

For instance Jaymes Todd did not even get the maximum sentence of life without parole ¹⁷for his rape and murder of Eurydice Dixon – he will be 55 when he is eligible for parole – yet he is appealing. His appeal was announced during the sentencing trial for Corey Hermann’s rape and murder of Aiia Maasarwe by the defence lawyer Tim Marsh who is acting for the offenders in both cases.¹⁸

Crimes of rape and murder are ranked according to a hierarchy of depravity

The current sentencing practice of comparing cases of rape and murder is perpetuating a spiralling degradation of justice as judges and lawyers rank the rape and murder of women according to a macabre hierarchy of depravity.

The crime of rape and murder is an inherently extreme, horrific, abhorrent, violating crime against women. It is a crime which should not be macabrely dissected and ranked.

Yet this is exactly what is going on in our courts today. Supreme Court Justice Elizabeth Hollingworth compared Aiia Maasarwe’s rape and murder with the recent rape and murder of Eurydice Dixon because that is ‘current sentencing practice’. This involved the judge comparing key ‘aggravating’ and ‘mitigating’ circumstances of each rape and murder.  For example the judge said:

“On the one hand, Mr Todd killed his victim with his bare hands, rather than a weapon. He also did not commit any aggravating act, such as setting fire to the body.”

“On the other hand, unlike in this case, Mr Todd’s offending involved substantial premeditation. He had had a long-standing sexual fantasy to rape and strangle to death a woman, for more than a year.”

It was due to this ‘ranking’ process that the judge found, in relation to the rape and murder of Aiia Maasarwe, “the case does not warrant the imposition of the maximum penalties.”¹⁹

If Aiia Maasarwe’s rape and murder did not warrant the maximum life sentence, what will? This judicial practice of precedent and comparing current sentencing practices has resulted in a broken justice system in relation to sentencing for crimes of rape and murder.

This is why we need mandatory life sentencing for the crime of rape and murder. And this is why the crime of rape and murder needs to be a specific offence.

The crime of rape and murder needs to be a specific offence

Rape and murder is a crime of the highest objective seriousness in the eyes of the community and this is why it needs to be a specific offence to reflect its gravity and to enable specific sentencing.

Currently rapist murderers are sentenced for the murder and rape separately. This is the wrong way to characterise the crime and results in the rape and murder being macabrely dissected and ranked according to a hierarchy of objective seriousness.

As discussed above, I believe this practice is perpetuating a spiralling degradation of justice as judges and lawyers rank the rape and murder of women according to a macabre hierarchy of depravity.

This results in the crime as a whole being minimised and sends the wrong message to the community.

I believe that crimes that involve both rape and murder needs to be treated as a stand alone crime carrying a mandatory life sentence without parole to reflect the gravity of the offence.

The mandatory life sentence without parole for the crime of rape and murder would reflect the totality principle which requires that the overall sentence is a just and appropriate measure of the total criminality involved, while ensuring that it meets the different objectives of sentencing.

Sentencing purposes of a mandatory life sentence without parole for the crime of rape and murder

The proposed mandatory life sentence without parole for the crime of rape and murder meets the purposes of sentencing under NSW law ²⁰ in the following ways:

1. ensure that the offender is adequately punished for the offence
2. prevent crime by preventing the offender and other persons from committing similar offences
3. protect the community from the offender
4. condemn (denounce) the conduct of the offender
5. make the offender responsible (accountable) for his or her actions
6. recognise the harm done to the victim of the crime and the community

A life sentence will enable true justice to be done.

A life sentence will prevent rapist murderers from ever being released to recommit their crimes – so preventing more victims.

A life sentence will act as a powerful deterrent to men considering raping and murdering a woman – because they will be locked away for life.

A life sentence will send a message of zero tolerance to the rape and murder of women.

A life sentence will say we value the lives of women.

Mandatory life sentencing without parole for rapist murderers will also ensure certainty, equality and consistency of sentencing, which are key pillars for ensuring public confidence in the justice system.

Law reform for mandatory life sentencing without parole for rapist murderers will deliver true justice, act as a powerful deterrent against violence against women and help to keep women safe.

Call to action for law reform

While my platform is the crime of rape and murder of women, in my submission to the NSW Review of Sentencing for Murder and Manslaughter, I called for law reform for sentencing for three murder crimes:

• I called for the crime of rape and murder to receive a mandatory life sentence with no parole.

I believe strong sentencing for the crime of rape and murder will send a strong message in society and help to reduce all violent crimes against women. My reasons are outlined in this blog post and in detail in my submission.

• I called for the crime of rape and murder of a child to receive a mandatory life sentence with no parole

I believe this sentence will reflect the gravity of the offence and society’s condemnation of this crime and help to reduce violent crimes against children.

• I called for domestic violence related murder to receive a life sentence with no parole.

The key reason for this is the national crisis we have with domestic violence murders. One woman a week is murdered in this country in domestic violence situations. Millions of dollars is being spent nationally on programs to address this issue, yet weak sentencing is undermining the message.

I believe strong sentencing will reinforce society’s condemnation of this crime and act as a powerful deterrent for violence against women.

I commend the NSW government for their national leadership in calling for this NSW Review of Sentencing for Murder and Manslaughter and truly hope the NSW Sentencing Council and the government will be strong and set a precedent Australia wide in addressing the crime of rape and murder which is a scourge on our society and ongoing risk to women’s safety and sense of safety.

Together we can call for mandatory life sentencing without parole for the crime of rape and murder. Together, we can make our community a safer place for women.

References

1. E. Culleton, Submission, MU 30, NSW Review of Sentencing for Murder and Manslaughter http://www.sentencingcouncil.justice.nsw.gov.au/Documents/Current-projects/Homicide/MU30.pdf
2. E. Culleton, Preliminary Submission, PMU 14, NSW Review of Sentencing for Murder and Manslaughter http://www.sentencingcouncil.justice.nsw.gov.au/Documents/Current-projects/Homicide/PMU14.pdf
3. https://www.smh.com.au/national/nsw/terrence-leary-given-another-chance-for-parole-after-explosive-attack-20160329-gnsq8w.html (Accessed 29 November 2019)
4. https://au.news.yahoo.com/murder-victims-sister-breaks-23-year-silence-17791130.html (Accessed 29 November 2019)
5. https://www.smh.com.au/national/nsw/terrence-leary-given-another-chance-for-parole-after-explosive-attack-20160329-gnsq8w.html (Accessed 29 November 2019)
6. https://www.abc.net.au/news/2015-03-26/adrian-bayleys-violent-history-of-sex-attacks/6349852
7. Lievore D 2004. Recidivism of sexual offenders: rates, risk factors and treatment efficacy. Archive. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/archive/recidivism-of-sexual-offenders (Accessed 29 November 2019)
8. Lievore D 2004. Recidivism of sexual offenders: rates, risk factors and treatment efficacy. Archive. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/archive/recidivism-of-sexual-offenders (Accessed 29 November 2019)
9. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Key%20Findings~1
10. https://criminology.research.southwales.ac.uk/cirn/research-projects/reoffending/
11. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Key%20Findings~1 (Accessed 29 November 2019)
12. https://www.ourwatch.org.au/understanding-violence/facts-and-figures (Accessed 29 November 2019)
13. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Feelings%20of%20General%20Safety~10005 (Accessed 29 November 2019)
14. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Feelings%20of%20General%20Safety~10005 (Accessed 29 November 2019)
15. https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4906.0~2016~Main%20Features~Feelings%20of%20General%20Safety~10005 (Accessed 29 November 2019)
16. https://www.theaustralian.com.au/nation/aiia-maasarwes-killer-codey-herrmann-to-learn-his-fate/news-story/ca5ef154e25b206dfe7a0792f3762ad8
17. http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2019/585.html?context=1;query=Todd;mask_path=au/cases/vic/VSC
18. https://www.abc.net.au/news/2019-10-03/eurydice-dixon-rapist-and-killer-jaymes-todd-appeals-sentence/11570856
19. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC//2019/694.html
20. http://www.sentencingcouncil.justice.nsw.gov.au/Pages/Sentencing/purposes-sentencing.aspx