NEVER TO BE RELEASED?
by Carolyn Strange
Australian National University
“For the term of his natural life” is a phrase cemented in Australian public memory to the convict era, thanks to Marcus Clarke’s novel of the same name. In contrast the sentencing condition, “never to be released” was invented in the modern penal era, and its history is comparatively obscure.
In New South Wales a political decision produced the first use of the “never to be released” rider on a prison sentence. Timing was everything. William Phillips had been convicted of murder and sentenced to death on 14 September 1910, the same day the State government was dissolved. The condemned man’s fate remained undetermined over the course of the election, which brought the Labor Party into power for the first time. As soon as the new cabinet was sworn in, the new Attorney-General and Minister of Justice, William A Holman, reviewed the case, as Phillips’ scheduled execution date loomed.1
If William Phillips had redeeming features they were known only to himself. His family and his neighbours had nothing good to say about the oyster farmer who worked the waters of Middle Harbour on Sydney’s north shore. He lived a rough life in Willoughby with his wife, Jessie, his daughter and two stepdaughters. Known to police for his drunkenness and belligerence, Phillips reported his eight-year-old daughter “Wicky” missing. When searchers uncovered a dead child in scrubland adjacent to the Phillips home he watched on, smoking a cigarette and squatting on his haunches. This scene, and his casual remarks, were recounted at the coroner’s inquest and the trial and they reappeared in the nation’s press. At the graveside, where Phillips identified his daughter – raped and battered with her throat slit – he muttered, “It would be crook to swing for a thing like this”.2 He very nearly did.
Over two days the ministers wrestled over the case: imposing the death penalty did not square with the critical stance many Labor men and women had taken against capital punishment, but the grievous nature of Phillips’ crime made him a prime candidate. Thus, their decision that he be imprisoned for life, “never to be released”, was a compromise of office.
From Federation to 1910, 11 men in New South Wales had been executed out of 64 capitally convicted offenders.3 Moreover, no one had been executed since 1907. In this respect, Phillips’ commutation was unsurprising, if controversial. More surprising was the government’s publication of the Cabinet Minute that accompanied the commutation.
In an unprecedented move Holman opened the door on privileged ministerial deliberations by publishing the rationale behind the Cabinet’s commutation decision. Phillips’ crime was “atrocious” but since it seemed not to have been deliberately premeditated, the death penalty was inappropriate. Yet the crime called a full life sentence to convey denunciation:
The Cabinet have only decided to recommend commutation of the death sentence in this case on the understanding, arrived at by my colleagues after several hours earnest consideration, that this prisoner shall not, so far as any decision of theirs can affect him, be again liberated … They have decided that … he [be] kept a life-long prisoner, as being a person who should not be at loose upon a society.
The Minute did not raise the fact that life-sentenced prisoners in this era rarely served more than 20 years behind bars, with most serving 10 to 15 years.4 The government “earnestly” hoped that Phillips would never be released.
To Labor’s critics, the Cabinet’s decision, while it sounded stern, was no decision at all. Holman could hope that his successors would “consider their Minute” if, at any time, they were petitioned to release Phillips, but he was powerless to compel the future course of executive action. The sentence’s condition was bound to be broken, according to an editorial in The Sydney Morning Herald, which complained:
If Labour is opposed on principle to capital punishment it should have the courage to say so … As a matter of fact the Labour attitude towards problems of this kind is plainly controlled by an instinctive dislike of penal law of any kind.5
In other words, the “never to be released” clause was a sign of weakness, and a licence to kill.
Public indignation over the commutation added to revulsion over the crime, since neither the jury nor the judge had recommended mercy. Had fresh evidence been uncovered? In such an event an inquiry could have been held under the Crimes Act. Otherwise, as Augustus James, the Member for Goulburn and a former Crown prosecutor charged, the death sentence should stand. “If laws are to be spurned in this way, God help the country”.6
Controversy over the case subsided as industrial unrest and the war commanded political attention. Subsequent State governments began to review the cases of life-sentenced prisoners, starting in 1912, when the Chief Justice, Sir William Cullen, clarified where responsibility for the review of life sentences lay. Asked by the Solicitor General whether the Supreme Court under the Criminal Appeal Act could review such cases Cullen replied that “a death sentence commuted to imprisonment for life or for a shorter term was not one upon which they could make a recommendation”.7 This was a matter for politicians, not jurists.
As Attorney-General Holman originally intended, Phillips lived out his natural life at Parramatta Prison, where he became a religious convert and a docile prisoner. When the State’s Life Sentences Committee met on 19 February 1946 to consider his release he was the longest-serving prisoner in New South Wales history. Yet the Committee stood by the Cabinet’s 1910 Minute. The first time Phillips left prison he travelled in a prison van to hospital where he died from cancer on 26 October 1949.8
Phillips’ fate is a reminder that a sentence of life “never to be released” is a draconian penalty, and a temptation for political purposes. After his election in 2011, Premier Barry O’Farrell held a press conference to announce his government’s plan to impose mandatory life sentences for homicides of police officers. Asked by reporters whether “life” would really mean “life” he made his intent clear: “out in a box.”9
The citation for this article is (2012) 36 Crim LJ 395.
1 Evatt HV, William Holman, Australian Labour Leader (Angus and Robertson , 1979) pp 188-189.
2 “The Willoughby Murder”, The Sydney Morning Herald (28 April 1910) p 5.
3 Five of those serving commuted sentences were women, one of whom (Annie Batten, convicted for murder 19 December 1906) died in prison 6 June 1907 while serving a life sentence.
4 Strange C, “Discretionary Justice: Political Culture and the Death Penalty in New South Wales and Ontario, 1890-1920” in Strange C (ed), Qualities of Mercy: Justice, Punishment and Discretion (University of British Columbia Press, 1996) pp 30-65.
5 “Labour and the Law”, The Sydney Morning Herald (26 October 1910) p 10.
6 “A Juryman”, The Sydney Morning Herald (27 October 1910); Daily Telegraph (14 April 1910); Mr James in New South Wales, Debates (17 November 1910) p 73.
7 New South Wales State Archives, No 7/5483 (13 December 1912).
8 New South Wales State Archives, No 13/10499 (14 December 1949).
9 The remark was audible at the press conference; however, it was not published in print versions. See “Cop Killers Will Get Mandatory Life Term: O’Farrell”, The Sydney Morning Herald (22 May 2011).