Justice served - or is it?

12:00, Jun 22 2013
KILLED: Thomas Kelly.
KILLED: Thomas Kelly.

A series of high-profile violent cases has shaken confidence in the New South Wales legal system.

The family of murdered Sydney teenager Vanessa Hoson concede they were naive to think they could finally put her killer Terrence John Leary in their past.

For years they had battled tirelessly to keep Leary in jail as he made repeated attempts for parole before the end of his 24-year maximum jail sentence.

At one point, somewhat optimistically, they even pleaded with the State Parole Authority to look for ways to extend his maximum jail time.

"Just because time is up on his sentence, we feel that it is not acceptable to release such a high-risk offender into the community," the family wrote in a submission last year.

"Rather than release of any sort, would it be more appropriate to consider working towards ways to change the laws to prevent a murderer with potential to be a serial killer from ever being released?"

Leary walked from Silverwater jail on parole in August having served more than 22 years. In the 10 months since, Vanessa's sister Fiona said the family had just started to believe they could move on.

She said she had even hoped to go through life without having to detail the horrors of her sister's death to her young children. But on Thursday that suddenly changed.

The family was told that Leary had been arrested again and charged with attempting to rape a woman then stabbing her as she stood at a bus stop in Hunters Hill.

Leary is accused of assaulting three police officers who arrived moments after the 6pm attack on Wednesday, and who allegedly needed capsicum spray and a Taser to arrest him.

Suddenly Hoson's murder, as she lay in bed in her family's Kenthurst home more than two decades ago, had been thrust back into the spotlight. And the Hoson family were left asking why the justice system had not done something to prevent an alleged attack that seemed inevitable.

The family's outrage that Leary had allegedly attacked again, while on parole, generated further public discontent towards the justice system.

The rape and murder of Jill Meagher as she left a Melbourne pub in September made international headlines, but it wasn't until her killer Adrian Bayley pleaded guilty to his horrifying crimes could an even darker truth be revealed.
Angry at the system: Tom Meagher,Jill's husband, believes the state parole board failed by allowing Bayley liberty.

He had been convicted previously of 16 counts of rape, released on parole, only to reoffend - and still be on the streets to murder Meagher.

On Monday, Bayley was handed a life sentence for the rape and murder of the ABC employee, who had been walking home from a night out with friends when she was attacked.

But in the Victorian courts, "truth in sentencing" provisions that apply in NSW - where life means life and such sentences carry no non-parole period - the sentencing judge also gave Bayley a non-parole period of 35 years. He will be in his late 70s before he is even considered for parole.

But the entire sentence, which included 15 years for the rape, drew the fury of her family. Tom Meagher said the state's parole board had failed in its duty by allowing Bayley to remain at large.

"I am half a person because of this crime," he said afterwards. Her father, George McKeon, said: "Jill was brutally raped and murdered and she is never coming back."

The Bayley case had already prompted the NSW government to review how it handled serious sex offenders. The review was widened after Wednesday's attack in Hunters Hill to take in serious offenders, such as Leary, whose offence had a sexual component.

Thomas Kelly's mother: His family are pushing for a murder charge.

While only convicted of murder, Leary confessed he had gone to the Hoson house and asked Vanessa for sex. It was when she refused that he repeatedly struck her with a hammer before taking her naked body and dumping it in a nearby car park.

On top of the NSW review, NSW Attorney-General Greg Smith said the Law Reform Commission had begun examining the parole system to see how NSW "can do better".

But while the Meagher family took aim at the parole board, the Hoson family were surprisingly pragmatic. They said they were not angry with the State Parole Authority in releasing Leary, saying it could only follow the guidelines set by the court system.

On the steps of the Central Local Court on Tuesday, the mother of Thomas Kelly, killed after a single punch to the head in Kings Cross 11 months ago, became the public face of justice denied.

Hands trembling, voice strong, Kathy Kelly was engulfed by grief, rage and frustration. Having just seen her son's killer for the first time on a grainy video screen - then to hear him plead guilty to a charge of manslaughter, not murder - she unleashed just some of what had plagued each of her waking moments for the past few months.

She, her husband Ralph, her daughter Madeleine and other family members were there, she said, to speak up for their beloved Thomas, because he could not speak for himself and "will never speak again".

The Kelly family revealed they had lobbied the government to reject Thomas' killer's manslaughter plea and pursue the charge of murder.

"We as a society depend on our courts to protect us by ensuring that the consequences for actions so heinous as to result in the loss of another human life must reflect the impact of the crime. Our family has lost a son, brother, grandson, nephew and cousin … What has the perpetrator lost?"

The public swung to outrage. "You punched the guy in the head and he's dead," 2UE's Paul Murray said. "That in my opinion is murder."

The station, led by announcer Jason Morrison, prepared a petition to the Attorney-General to change the Office of the Director of Public Prosecutions' mind. The injustice was patent. The DPP had wimped out again. Financial considerations were put ahead of a murder conviction. The rights of offenders were put ahead of victims. It had happened so often before. An opaque plea bargaining deal had triumphed over justice.

But the truth was more mundane. And, in the eyes of much of the legal fraternity, possibly quite just.

The DPP had never even entered plea-bargaining discussions with Kieran Loveridge's defence team.

"One-punch" cases are notoriously difficult to press as murder charges because they often involve alcohol. Sometimes, although not in this case, issues such as provocation or self-defence are involved and always there needs to be proof of intent.

Despite charging him two weeks after the crime with murder, it was left to prosecutions director Lloyd Babb SC to withdraw the charge. He said the outcome such as the one in the Kelly case was "sometimes necessary".

"There was no plea negotiation entered into in the Thomas Kelly matter, the decision was made that murder could not be established," Mr Babb said. "That decision had nothing to do with accepting that the punch was accidental. The charge to which a plea was entered was manslaughter which carries a maximum penalty of 25 years in prison."

He said the prosecution guidelines and the Victims Charter of Rights enforced the requirement for victims or families of victims to be consulted about changes to any charge.

"That happened in the Thomas Kelly matter," he said.

"We cannot, however, prosecute a matter on the wishes of victims or their families if there is insufficient evidence to sustain the charge."

Amid the public outcry, Premier Barry O'Farrell called on the DPP to be more open and reveal to the entire community the reasons for his decision.

But Mr Babb said, until the case was heard to finality in court, there should be no public discussion of a case by the prosecutors.

"We cannot and will not issue information about a case publicly until it has been heard in court," he said.

But arguably, the plaintive response of the Kelly family to Loveridge's guilty manslaughter plea indicate the DPP is not above reproach in its handling of the prosecution. Those familiar with the negotiations that take place in the background of criminal trials say the family's reaction is suggestive of a failure by the DPP to manage adequately their expectations.

Raising hopes of a murder conviction left the Kelly family destined for disappointment and the community with a perception of the DPP as weak at best and underhand at worst.

"It's worrying that people might think his [Thomas Kelly's] life was traded off or they took some sort of plea bargain," one prosecutor said. "On the face of it, [this] is a classic 'unlawful and dangerous act' manslaughter. There's no way murder would have got through. It would have been inappropriate to run it, and most likely resulted in not only a resounding acquittal but also a massive costs order against the state."

To each charge, three tests need to be applied: Is the evidence capable of proving the offence? Is there a reasonable prospect of conviction? And if those tests are satisfied, are there any other factors in the public interest why it should not proceed?

"From what I know, it wouldn't have got through the first test," the prosecutor continued. "There's no question [Loveridge] was trying to hurt people, but was there an intention to kill or cause grievous bodily harm? Depending on the fracture, it's highly unlikely that could be sustained."

The DPP needed to give victims and the community more information to ensure they understood the decisions that were made, he added.

By international standards, the DPP is secretive about its operations. Many such offices are proactive in explaining why they make their decisions and issue media releases on high-profile cases. The latest media release on the DPP's website is dated April 6, 2011.

"This case perfectly exemplifies why being open is a good thing today, because the public needs to understand the basis on which these decisions are made," says Griffith University criminologist Philip Stenning.

In Britain, public confidence in the Crown Prosecution Service has risen since it started making itself accountable.

The perception of manslaughter as "getting off" is troubling for the DPP in itself. One senior criminal lawyer said part of the problem was an unwillingness by judges to impose the maximum penalty of 25 years on perpetrators. The heaviest manslaughter sentence to have been imposed in NSW is 15 years. According to Bureau of Crime Statistics and Research figures, the average aggregate sentence for manslaughter is seven years, and the average minimum is 4½ years.

Criminal lawyer Phillip Boulten SC said it was "unsurprising" for the DPP to have accepted a manslaughter plea for a case where the act constituted a single punch. But even leaving aside the evidence, prosecutors needed to be pragmatic about what charges to pursue.

"The criminal justice system is a human system and the results aren't spilt out by a computer," said Boulten, who is also president of the NSW Bar Association.

"Juries are involved and judges are involved. That leads to results that aren't always foreseeable and prosecutors reasonably take the view that sometimes it's in everybody's interests, and particularly the community's interests, that a conviction be brought successfully rather than losing a conviction entirely."

There is also the interests of the accused. In Loveridge's case, he was 18 at the time of the offence, will be not 20 before he is sentenced. In all likelihood, he will be out of jail by his 30th birthday and his prospects of rehabilitation are sure to play a role in the sentencing process.

He has saved the family the agony of a trial, so that too will be considered. His early guilty plea will also get him an additional 25 per cent discount on the sentence that might otherwise be imposed.

For the Kelly family, the ultimate sentence will only further anger and outrage them and the community who ache for their loss. No sentence would have been long enough to bring them justice.

"The more [jail time] he gets the better," said another Crown prosecutor. "But you can only hope he knows what he has done and never, ever gets over it, and his actions stay with him forever. There's justice in that."

Up for parole: weighing up when to set free

It starts with the arrival of a bulging file of documents in the mail - hundreds of pages detailing the behaviour, psychology and background of men and women serving time in the state's jails.

The five members of the NSW Parole Authority selected for that week's meeting are expected to read every document before reaching a decision that has the potential to affect dozens of lives - whether or not to set a convicted criminal free.

"You couldn't do it full time - it'd muck up your head too much," says Martha Jabour, the sole victim's representative on the NSW Parole Authority. For decades the authority has been quietly working, deciding whether offenders, from petty drug pushers to serial murderers, should be allowed back into the commun-ity, and in what circumstances.

But a mist of confusion surrounds the process by which these decisions are made, particularly those relating to the most serious offenders such as the man who has almost singlehandedly reignited the parole debate in NSW, rapist-murderer Terrence Leary.

"Over the years I've sat on many matters and Leary would be one of them," Ms Jabour says, declining to comment on whether she was among those who voted to release the 46-year-old last August.

"I can tell you that that decision wouldn't have been taken lightly."

The parole authority consists of around 20 members, made up of four judicial members who chair meetings and hearings, community representatives such as Ms Jabour, representatives of the probation and parole authority, and police.

The members are rostered in panels of five, depending on their availability, with each panel including at least one representative from these different areas.

After reading the dreaded document file, the panel members hold a private meeting at the Parramatta Justice Precinct at which they discuss and debate each offender individually and vote on whether or not they should be released.

For the panel to even consider a serious offender for release they must have the recommendation of the Serious Offenders Review Committee, which looks at whether an inmate has completed certain compulsory courses, such as the sex offenders program.

Ms Jabour says that the debate is "free-flowing" but that the members of the panel often have the same opinion on whether an offender should be released.

"For me there are three aspects that I take into account, the security of the community, the need for effective rehabilitation and, most important from my perspective, the interests and needs of victims," she says.

"Every family wants the offender who harmed their loved one to remain in custody. None of them want the offender to be released.

"In Leary's case, the question needs to be asked - should we have let him go right to the end of his sentence? With no supervision? Or do we release him on some period of parole that allows us to monitor his daily movements, location etc?"

She says Leary must have completed a number of courses in prison before the authority agreed to release him, including the serious sex offenders program known as CUBIT.

If the panel decides that a serious offender should be released, or "forms the intention", as they like to say, the matter is automatically set down for a public hearing at which the victims of the crime, the Crown, Corrective Services and the offender are invited to attend and make submissions to the panel.

The make-up of the panel is usually different to that which made the preliminary decision, and it is not unusual for that position to be reversed at the public hearing.

Should this new panel decide that an offender is ready to be released, they will set a release date, usually within a couple of weeks.

Contrary to popular perception, the parole panel cannot impose the orders for extended detention or extended electronic supervision introduced by the O'Farrell government earlier this year. Such measures can only only be imposed by the Supreme Court following an application by Corrective Services.

Ms Jabour believes that the system is a good one, but that there is always a remote chance that a Terrence Leary will be allowed to emerge and reoffend.

"How can you predict that he will reoffend?" she says.

"For 11 months on parole he'd not breached a single condition, and then this? You can only make the best decision possible with the information available."


Adrian Bayley
REPEAT OFFENDER: Adrian Bayley was out on parole when he raped and killed Jill Meagher last year.
Jill Meagher
VICTIM: Jill Meagher went missing when walking home from drinks with workmates.

Sydney Morning Herald