Does ‘Never to be Released’ mean ‘life’?

1st Aug 2019

With highly publicised, brutal murders in WA, interstate and overseas, debate rages over what can be done to punish — and rehabilitate — offenders and keep the public safe.

Last week, Anthony Harvey became the first person in WA ordered by a judge never to be eligible for parole.

Harvey killed two-year-old twins Alice and Beatrix, three-year-old Charlotte and their mother Mara Lee Harvey, 41, at their Bedford home on September 3, 2018. He killed grandmother Beverley Ann Quinn, 73, when she visited the next morning.

These are six questions that arise from the sentencing of the killer.

Q Does the ‘Never to be Released’ sentence represent a new tough approach to murder by the WA courts or legislature?

A No. Provision for this sort of a sentence has been in place for a long time. It is generally accepted, however, that in all but the very worst cases it will not be used.

It is unlikely that we will see any of these sorts of sentences regularly imposed in the coming years unless there is a crime equivalent to the extreme circumstances of Harvey’s case.

Q Can he appeal against the sentence?

A He has a right of appeal to the Court of Appeal and, if unsuccessful, a right to seek special leave to appeal to the High Court of Australia. Given the circumstances one might expect that he would probably consider both, if necessary.

Q In the case of the Greenough murders, where William Mitchell killed Karen MacKenzie and her three children with an axe, the offender successfully challenged a ‘Never to be Released’ order in the High Court. Why wouldn’t Harvey be similarly successful?

A The current legislation is somewhat different from that which was in force at the time of the Greenough case and it is arguable that the current law might make it more difficult for an offender to challenge.

There are a number of grey questions of statutory interpretation involved which could be resolved either way.

Q Harvey is the first offender (on a murder charge) to get life imprisonment without parole. Are all the other offenders who were granted parole likely to be released at some stage?

A No. There are numerous offenders serving life sentences whose earliest parole date has come and gone. Parole for these types of offenders is far from automatic, or even likely. There are offenders currently in prison who are decades past their parole date and for whom the prospect of release is extremely remote.

Q Isn’t the possibility of parole an important incentive for prisoners to rehabilitate and behave while in prison?

A The prospect of parole is a powerful incentive for most prisoners to do the right thing. In the absence of such an incentive, there are few sanctions that can be used to ensure the safety of people working within the prison. Some administrative measures such as loss of privileges, visiting rights, and solitary confinement can be used to deter offenders from offending inside prison.

Obviously none is as powerful or effective as the prospect of release.

Q If Harvey’s appeals are unsuccessful, can the public be absolutely certain that he will never be released?

A No. While the prospects of his ultimate release are unlikely, there still remains a Royal Prerogative of Mercy which would entitle the Executive Government of the day to recommend to the Governor that Harvey be released at some future time.


This is an edited version of an article originally published by The West Australian on 25 July 2019. It has been republished with the author’s permission. 

Tom Percy QC was born in Kalgoorlie where his family ran a hotel for many years. He attended Scotch College and UWA, graduating in 1977 and was admitted to legal practice the following year. In 1984 Tom was elected to the WA Bar Association and was appointed Queen’s Counsel in 1997. Tom practices primarily in the area of criminal law, specifically jury trials and superior Court and Tribunal appeals. In 2006 he received the Community Service Award from the Law Society of WA and in 2007 he was awarded the WA Civil Justice Award by the Australian Lawyers Alliance. In 2013 Tom was awarded the WA Law Society’s Lawyer of the Year Award. He is a member of the Editorial Board of the Australian Criminal Law Journal, a member of the National Criminal Law Consultative Committee and a former State President and National Director of the Australian Lawyers Alliance.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Western Australia Access to justice Criminal justice Prisoners Criminal law Sentencing Prisons Rehabilitation Appeal Tom Percy QC