Chapter 14

The Real Truth in Sentencing

Something was rotten with the legal system, or so it had been decided. A judge could pass a sentence and mean another. There were two results from this: first, rulings would seemingly quell the victim’s family’s outrage as criminals appeared to be serving longer detention periods than they actually were; and, secondly, rulings weren’t hard on government purse strings as true sentences were often quietly minimal. Then, in 1989, New South Wales Premier Nick Greiner and the Minister for Corrective Services, Michael Yabsley, decided to put truth back into sentencing. The legislation they proposed would mean prisoners had to serve at least 75 per cent of their sentence before becoming eligible for release for good behaviour. Using Raymond Patterson’s early release as a lever to encourage Cabinet and Legislative Council support, the legislation was passed that year.

Raymond Patterson was released in early 1989 after serving only 21 months of an eight-year sentence despite having a three-year non-parole period. He had been convicted of harbouring two of Anita Cobby’s murderers, but was released early due to good behaviour. Under truth-in-sentencing, Patterson would have served around six years imprisonment.

On 3 April 1992, Gwen Hanns once again found herself facing John Lewthwaite in the Supreme Court of New South Wales. The Sentencing Act 1989 (NSW), which was passed as a result of truth- in-sentencing, had opened the way for 327 lifers, who had been sentenced before 12 January 1990, to apply for determinate sentences. Any of these prisoners, currently serving time, could swap their life sentences for a specified number of years, providing they had already completed eight years of incarceration. The new sentences were called determinate sentences.

The argument for determinate sentences was that these prisoners had been unaware of the legislation when they were sentenced and may have not have taken the deals they did at the time had they been. Judges may also have ruled differently had the legislation existed. Lewthwaite was among those who applied.

Acting Justice Slattery, the judge who had earlier imposed Lewthwaite’s life sentence, heard the application. The Senior Deputy Director of Public Prosecutions opposed it. He argued that the particulars of the murder and the evidence of an experienced psychiatrist, who still regarded Lewthwaite as a risk, were good reasons to keep him locked up. Alternatively, he contended, if his Honour were to decide to award a fixed sentence, there should also be an additional term of ‘one to life’. An additional term of ‘one to life’ meant that if Lewthwaite were released in the future, he should be on parole for the rest of his life.

‘This is an application by John David Lewthwaite,’ Acting Justice Slattery began, ‘pursuant to s 13A of the Sentencing Act 1989, seeking the determination of a minimum term and an additional term for the sentence of life imprisonment.’ Under the provision of truth-in-sentencing, which allows for those sentenced to life to apply for a set sentence, Lewthwaite had applied for a minimum period of imprisonment and an additional parole period to be set by the courts. It would be Acting Justice Slattery’s job to decide whether or not the request should be granted.

Gwen Hanns had received a letter from the Office of Public Prosecutions in January 1992, informing her that her daughter’s killer had applied for a determinate sentence and a court date would be set by the Supreme Court on 21 February. She was to be advised of this date. Today was that day. Lewthwaite, who had significantly less hair, had otherwise changed little. Gwen now had short silver hair. The years of stress and pain, clearly visible in her eyes, had taken their toll. As she sat shaking, she was aware of the possible outcomes. She had been told that the judge could decide in one of four ways.

First, the judge could decide to set a minimum term and an additional term. Lewthwaite would then have to stay in jail until a set date after which he could apply for parole. He would be supervised for the additional term, and then be free. Secondly, the judge could set a minimum term with an additional term of life. This would mean that, if he were released in the future, he would be on parole until he died. Thirdly, the judge could refuse to set a fixed term but allow Lewthwaite to re-apply for a determinate sentence within the next two years. Finally, the judge could refuse to set a fixed term and stop re-application for two years.

Gwen hoped that the judge would decide in the fourth way; even so, she was aware that she would have to face the nightmare of Lewthwaite’s possible release again and again for the rest of her life. Her mind returned to the courtroom. Acting Justice Slattery was describing Lewthwaite’s behaviour in jail, including his escape from Morriset and subsequent suicide attempts in 1976, when he slashed his wrists; the time he set fire to a workshop and his troublesome behaviour until 1981; and then his good behaviour and re-classification, which allowed him to escape on day release in 1985.

Gwen had come with her husband, Peter, and their two boys, Anthony and Shane. She looked at Anthony. He was now a well-built man with a beard and a multitude of tattoos. She doubted whether any sane person would try to take him on these days. Lifting her head sadly towards the judge, she refocused on his words. Acting Justice Slattery was beginning to cover the psychiatric evidence.

At the end of the day, the judge decided according to the second way: he determined Lewthwaite’s sentence to 20 years with an additional term of life. Lewthwaite would not automatically be released on 25 June 1994 but would be able to apply for parole from that date. His possible release was in the hands of the Offenders Review Board (ORB). From his seat, Lewthwaite turned and smiled at Anthony before saluting him. Anthony remained silent. Next to him, Gwen was absolutely deflated, a feeling of helplessness suspending her in neurogenic shock. At least that was the label a doctor had given her inability to react in stressful situations. Tearless, she sat shaking as the icy state slowly penetrated her entire body.

 

It took six months for Gwen to find the inner fortitude to fight. Although by no means affluent, she decided to do everything in her power to keep her daughter’s killer in jail. During Lewthwaite’s trial for Nicole’s murder, one of the psychologists had said of him:

 

There is something terribly wrong with this boy which the label of psychopathy does not adequately cover. This tendency to sexual fantasy has already been acted out in a number of ways, including the killing. I would think that such things could happen again with the greatest of ease.

 

Mr Justice Slattery had also suggested in his sentencing that unless medical science could offer a future solution, it was unlikely that Lewthwaite could ever lead a normal life in society. Gwen’s argument was that, before Lewthwaite had been sentenced, the law had had to prove beyond reasonable doubt that he had killed, so now it seemed only fair that the law offer society the same courtesy. He should prove beyond reasonable doubt that he would never kill again.

Lewthwaite made his first application for parole in 1994. On 18 July that year, Carl Scully, a Member of the New South Wales Parliament, stood before the ORB on behalf of the Hanns family. Gwen had enlisted his help in the battle to keep her daughter’s murderer behind bars. The system seemed to have failed her in so many ways. The killer was getting taxpayer-funded legal representation at the ORB, as he had done throughout his trial and re-determination, and she was getting nothing. Worse still, she was denied the right to give evidence of her fears, yet Lewthwaite could subpoena her to the stand at any time to claim that her efforts to keep him in jail were prejudicial.

As Gwen’s local member, Carl Scully was determined to support her. He had already been before the Serious Offenders Review Board (SORB) on the second last day in May. He and Gwen had been trying to stop Lewthwaite’s day release as well as his parole. At that time, the murderer was in Cooma Jail, working on a farm. Today, it was Carl Scully’s mission, once again, to keep Lewthwaite behind bars. He had been denied access to any psychiatric evaluations of the prisoner, and pointed out that if that material had been available to the defence, then the system was clearly one sided. He also stated that Serious Offenders Review Council (SORC) had not backed up its decision to re-classify the prisoner for day release in April with any proof of change. In 1991, Lewthwaite had been seen as ‘a very special threat to children in the community’, yet three years later he was eligible for day release.

‘The Serious Offenders Review Board engaged Dr Rod Milton, Psychiatrist,’ Mr Scully stated, ‘to assess Lewthwaite. Dr Milton believed Lewthwaite was likely to re-offend in a violent manner and that he was still dangerous.’ The psychiatrist had concluded that Lewthwaite’s history indicated he had a severe anti-social personality disorder. Scully quoted evidence that he had retrieved from previous transcripts labelling Lewthwaite as a manipulator who had conned psychiatrists and psychologists alike into supporting his release.

Scully then turned to the statements a number of inmates had made. Norm, whose real identity was never released to the public, had telephoned a local radio talk-back line after a friend had prompted him to do so. A former prisoner, he needed to tell the announcer what he believed to be the truth. ‘I would just like to make a comment,’ he had begun, ‘as I am concerned and (so are) a lot of people I know. Mr Lewthwaite should never be released.’ There had been an on-air debate as to whether he had changed enough to re-enter society. Norm was sure he hadn’t changed. Manipulating psychologists was easy. He’d done it himself.

The first time Norm had come across Lewthwaite, he had asked someone why he wasn’t under protection like other ‘rock spiders’ or paedophiles. ‘They are not generally walking around the main jail,’ Norm later confirmed before the SORC. ‘I was told anyone (who) goes near him could get hurt.’ After he’d been told that, he had steered clear of him. Besides, he had reasoned, people judged you by the company you kept in jail and he didn’t want to get bashed. He’d heard that the alleged paedophile used to get boys in his cell. He was rough on them too. Boys were anyone under 25. Men were those older than that. And he had also heard that he’d forced himself on a boy who looked like the victim’s brother. He had tried to con him at first, but he hadn’t wanted to borrow his television in exchange for sex, so he’d just gone ahead and done it. Norm hadn’t wanted to hear more.

While on the radio, Norm claimed he had even received a phone call from Lewthwaite the day he broke out of the training centre. His mate had said he’d needed money and a place to stay. He wasn’t going to get caught up in that. When the announcer asked him whether he thought Lewthwaite would kill again, he replied, ‘I’ll stake my life on it.’

The second statement was from an anonymous inmate who had served at both Cooma and Long Bay Jails. He had spent time with Lewthwaite and was too scared to give his name. Scully stated:

 

This inmate claimed that Lewthwaite used to get the pick of the yard of 18 to 21 year olds and had a different male in this age range as a cell mate each week. … The ex-inmate also claimed that in Long Bay in 1991, Lewthwaite had a lovers tiff with a very young looking 22-year-old Phil. It was claimed that Lewthwaite on this occasion chased Phil through the muster line shouting abuse and screamed out, I’m going to kill you. The prison warders then got between Lewthwaite and Phil and prevented anything further from occurring.

 

Then there had been an 18-year-old inmate who had escaped from Glen Innes Jail in 1989. The young man had claimed he had done so because he feared returning to Grafton where he had allegedly been raped by Lewthwaite and another prisoner. Carl Scully acknowledged that nothing had been proved beyond reasonable doubt, but suggested that the board follow up the details of this allegation with Inspector Cuill who had been investigated it. Citing the concern of two well-known criminologists, Dr Paul Wilson and Rod Broadhurst, Scully summed up that the prisoner should be denied parole.

‘Lewthwaite should not be given the opportunity to kill again or to fulfil his sexual desire for young boys,’ he concluded.

Later that month, Gwen received a letter confirming the board’s intention to refuse parole and inviting her to attend further deliberations at the end of August. With the aid of Carl Scully and any expert who would give her a little of their time, Gwen was determined to continue her fight to keep Lewthwaite in jail for as long as possible, but an end to her battles would arrive less than five years later.

 

It was June 1999. The media was in a frenzy. All indications suggested that the child killer John Lewthwaite would be released on parole. There was also some suggestion he would be the first prisoner of his calibre to be required to wear an electronic detection anklet during his parole. No other released child murderer had had to do so. It had also been said that the Department of Public Prosecutions (DPP) would be asking that he be subject to a night-time curfew and random phone calls to monitor his movements.

Gwen was chilled at the thought of his release. Over the past seven years, she had fought consistently to keep him behind bars and had succeeded in having five parole applications quashed. Her biggest fear was that, in the future, he might hurt another child as he had done Nicole or attempted to do to Anthony. A month earlier, she had received a letter informing her that a hearing was coming up. Once again, her health had suffered. The past 25 years had played havoc with her both physically and emotionally. Yet she was determined to fight.

On the morning of 9 June 1999, she and Peter stood by Hyde Park Barracks outside Court 26. Their family and friends from the Victims of Crime Assistance League (VOCAL) had come to offer support. Many had pinned badges to their jackets bearing Nicole’s face. Lighting up a cigarette, Gwen nervously hovered by the bench-like seats in the cold morning air.

‘I don’t know what I’m going to do if they let him out,’ she despaired, checking her watch. The proceedings were due to start at 9.30 a.m., but there had been rumours that the court was going to change the venue because of the expected crowd. ‘Wonder where it’ll be?’

Through the gates, various television stations had begun to set up cameras. A number of journalists were milling about the court door. Periodically, a glint could be seen as an extended zoom lens caught the sun. No one had as yet approached Gwen or her family. Gwen stubbed out the cigarette and began to talk to Christine Simpson, who had travelled from Bowral that morning with her partner, Gunther, to offer support.

There was some movement. A door was opened slightly and a number of people surged towards it. The Hanns family made their way to the front. Initially, they were the only people allowed in the courtroom. Outside the closed door, a combination of journalists and interested parties sandwiched toward the entrance. A couple of people began to discuss the possibility of being denied access to the court. Tensions began to rise, and then rose further as one of Lewthwaite’s supporters began to heckle Christine Simpson. The door opened and a sea of suits clambered up the stairs.

Lewthwaite was sitting a few metres from Gwen and Peter. To each side of him sat an officer. At the front of the room, a line of Parole Board Members peered at everyone from behind their documents. Only one woman was among them. The stuffy room had extended its capacity. The mix of journalists, civil libertarians, officers and supporters overflowed into the stairwell.

Gwen and her family were among the few seated. She looked at the standing crowd. It was hot and stuffy. She was glad of the chair. Ironically, the last few weeks had been bitter sweet for Gwen. Every parole hearing played havoc with her health. This time, the papers had all been proclaiming Lewthwaite’s certain release. That had been hard. However, she had also been celebrating. Her daughter Cherie was getting married. Cherie had chosen to wear Gwen’s wedding gown and she looked a treat in it. They had made the rest of the dresses. Her grand-daughter was going to be a flower girl. It was unfortunate that the two events had come together in the way they had.

The proceedings began and Gwen nervously refocused on the board before her. Elsewhere in the room, the only movement was the scribble of pens as journalists took notes, those near the door and in the hallway straining to hear anything newsworthy. It took time for the respective counsels to argue their cases for and against Lewthwaite’s release. The verdict was left until after lunch.

After lunch, there was a hush over the courtroom as everyone tried to make sense of the board’s summation, the legal diatribe covering the various arguments before bringing everyone towards the final decision. Lewthwaite was to be placed back into society. There were to be no curfews, no leg bands, no random phone calls. He would, however, be barred from going within ten kilometres of the Hanns’s house and be subject to regular urine tests to ensure he wasn’t drinking. He would also be barred from contact with anyone under the age of 16. The first three years would consist of weekly visits to his case officer and he would have to undertake psychiatric counselling.

Lewthwaite sat motionlessly as Gwen’s daughter Cherie burst into tears. Anthony, Gwen and Peter were in shock. Everybody was.

On 21 June 1999, Lewthwaite walked free.