The recent high profile execution of drug traffickers in Indonesia (including Australians Andrew Chan and Myuran Sukumaran) has resulted in an intensified debate about whether the death penalty is really necessary or justified.

Victorian Supreme Court judge Lex Lasry, a prominent campaigner against the death penalty, has argued that the death penalty is not only inhumane, there is no evidence that it has any deterrent value. In other words, it is both cruel and ineffective.

Abundant publicity has been given to evidence that, after a decade in prison, Chan and Sukumaran, who were identified as the ringleaders of the “Bali 9” drug smuggling operation, had been rehabilitated to the extent that they were engaged in effective programmes to reduce the drug trade in Indonesia. In which case, their execution has deprived the criminal justice system in Indonesia of an effective weapon against drug crime.

Despite these arguments, the death penalty continues to be imposed for a variety of crimes around the world, largely to promote a culture of retributive justice. Conversely, the death penalty has been abolished in Australia (and numerous other countries), where society now prefers methods of punishment which involve elements of deterrence and rehabilitation.

Iran is the country with the next highest execution rate, behind China and North Korea, with approximately 369 people being executed in 2013 for crimes ranging from murder, rape, child molestation, sodomy, drug trafficking, armed robbery, kidnapping, terrorism and treason.


Capital Punishment in Australia

The first recorded execution in Australia occurred in 1629, when the mutineers of the Batavia, a Dutch trading ship, were executed on an island off the coast of Western Australia. The first person to be executed after the arrival of Captain Cook was Thomas Barrett, who was executed on 27 February 1788 for committing forgery.

In the early 19th century a person could be sentenced to death in Australia for crimes including burglary, sheep stealing, forgery, sexual assaults, murder, manslaughter and, in one reported case, for being illegally at large. In the 1800s, an average of about 80 people were executed in Australia annually.

Since Federation, there have been 114 people executed in Australia, the last having been Ronald Ryan, who was hanged in Victoria on 3 February 1967 for killing a prison officer during an escape from Pentridge Prison. In August 1954 Brenda Hodge became the last person in Australia to receive a death sentence for murdering her partner Peter Rafferty. Her sentence was later reduced to life imprisonment, and she was released on parole in 1995.

Each state has now repealed capital punishment laws. Queensland was the first state to do so, repealing capital punishment in 1922, with its last execution occurring in 1913. Western Australia was the final state to abolish the death penalty for murder when it abolished the death penalty for all offences in 1984. The final person to be executed in Western Australia was Eric Edgar Cooke, who was hanged on 26 October 1964 at Fremantle prison. New South Wales was the last State in Australia to repeal the death sentence for all crimes in 1984.

The repeal of capital punishment in Australia was driven by the public opinion, which became increasingly against the idea of sentencing someone to die as a retribution for their crime. Ronald Ryan’s execution sparked large public protests, which were enough to persuade the government that the Australian public were firmly against capital punishment.

Why do we punish crime?

The answers may seem an obvious but, where capital punishment is concerned, there are strong opinions which illustrate their importance.

Sentences are imposed on law-breakers for a variety of reasons, chiefly:

  • to express society’s disapproval of the offender’s conduct – at the extreme, this can be equated with revenge;
  • to prevent an habitual or dangerous criminal from reoffending, usually by imprisonment;
  • to discourage citizens generally from breaking the law; and
  • to implement programmes to reform offenders.

Capital punishment fulfils the first two of those goals. Those who argue for the death penalty say that punishment should reflect society’s condemnation of those who break the rules.

However, execution has no role to play in rehabilitating an offender and, as Justice Lasry has pointed out, there is little evidence that executing a criminal has any effect in reducing crime. Those against capital punishment say that execution is so barbaric a punishment that it cannot be justified in any circumstances, particularly cases, such as Chan and Sukumaran, in which the deterrent effect is negligible, and reform of the offender results in a positive gain for society.

For any legal advice contact the team at Lynn and Brown Lawyers on 9375 3411 or contact us https://www.lynnandbrown.com.au/contact.

About the author/s

Luke Nixon is a Senior Associate at Lynn & Brown Lawyers. He was admitted as a lawyer in the UK in 1991, and has been engaged in legal practice in Australia since 1996. He has a broad range of experience in Commercial, Civil and Administrative Law, providing advice to clients and appearing regularly on their behalf in a variety of State and Federal courts and tribunals.

Aaron Plenderleith is a Law Graduate with Lynn & Brown Lawyers. Aaron’s specialties include legal writing, legal research, criminal law and employment law. He values providing dependable and reliable advice to clients.


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