CCPR/C/112/D/1968/2010
impact disproportionately on children relative to adults. A life sentence with only the
remote, technical possibility of release is cruel and inhumane for precisely the same
reasons. The authors’ remote chances of release on their deathbeds, in the event of serious
physical incapacity, or upon the discretionary exercise of a scarcely exercised executive
power, does not render humane what would otherwise be cruel and inhuman.
Claims under article 10, paragraph 3
5.6
The authors reiterate that their lifelong incarceration is in violation of article 10,
paragraph 3. A rehabilitative process has release and reintegration as its destination or end
point. Hence, they are not on a rehabilitative path towards release because they will never
be released (unless terminally ill or severely physically incapacitated). The sentencing law
reforms complained of deprive the treatment of the authors of any rehabilitative character.
Their incarceration serves only punitive ends.
Claims under article 15, paragraph 1
5.7
In the interest of purposive interpretation and giving practical content to the
protection in article 15, the Committee should evaluate the true nature, effect and intent of
the retrospective legislative changes cementing the authors in their cells. Whether the laws
are retrospectively punitive should be a question of substance and intent, not form. The
legislative changes complained of violate the letter and spirit of the protection against
retrospective criminal punishment for the following reasons.
5.8
First, at the time of the offence and sentence, the authors had prospects for release
that were realistic and would be regularly considered. In particular, the authors were able to
apply for a determination of their life sentence after serving eight years in prison. While it
is not possible to predict when the authors would have been released under the regime
applicable at the time it is clear that the authors had a realistic chance of release within their
natural lives. The mean time served by persons subject to life sentences in New South
Wales between 1981 and 1989 before release on license was 11.7 years.
5.9
Secondly, there is no doubt that the legislature of New South Wales mounted a
concerted campaign over several years to remove any meaningful prospect for the release
of the authors. The then Premier of New South Wales made statements in Parliament and to
the media that the laws aimed to ensure that the authors would never be released from
custody. Further, the Government of New South Wales has repeatedly acted to extinguish
any prospect for the release of the authors whenever it has become apparent that existing
legislation fails to do so. For instance, in 1996, eight years after beginning his sentence,
Mr. Blessington sought a redetermination. The Supreme Court of New South Wales found
that he was not affected by the new, more punitive sentencing laws targeted at him because
his application was already on foot at the time of their commencement. 14 The Court
suggested that given the legal consequences that now flowed from the trial judge’s
comment that he should never be released, that comment could be challenged in the
superior courts as manifestly excessive when made in respect of 14 and 16-year-old
children. Alternatively, the challenge could be based on the fact that the authors had been
denied any real opportunity to make submissions on the comment, because it was uttered at
a time when it was of no legal consequence. In response to that judgement, the Government
of New South Wales promptly passed further reforms making it clear that the laws applied
to any applications already on foot. The sole consequence of that further amendment was to
delay the consideration of Mr. Blessington’s application for a determination of his sentence
for over two decades. Reforms were also passed amending the definition of “non-release
14
14
R v. Bronson Mathew Blessington, 2005.
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