Should a person be prosecuted for past behaviour that is no longer a crime? After all, if society no longer considers the conduct to be deserving of punishment, there is an argument that it is against the public interest to spend community resources on criminal proceedings.
This question was explored in the case against former NSW state politician, Minister for Aboriginal Affairs Milton Orkopoulos.
Things began to fall apart for Mr Orkopoulos in 2006 when he was charged with various drug and sex charges, and was dismissed from parliament by then Premier Morris Iemma.
Orkopoulos v R (2009)
A number of the charges against Mr Orkopoulos arose from allegations that he had sexual intercourse with boys aged between 16 and 18 years in the mid to late 1990s, after grooming them with drugs and gifts. Homosexual intercourse with persons under 18 was an offence under section 78K of the NSW Crimes Act until 2003, when the age of consent was lowered to 16 in line with heterosexual intercourse. The offence carried a maximum penalty of 10 years imprisonment.
Despite the offence having since been abolished, Mr Orkopoulos was convicted in 2008 in the Newcastle District Court and sentenced to a minimum term of 9 years and 3 months imprisonment for all offences. He appealed against the severity of the sentence on the basis that he should have received leniency because the homosexual intercourse with children between 16 and 18 is no longer a crime.
The Supreme Court of NSW was therefore tasked with deciding whether or not the abolition of the offence entitled Mr Orkopoulos to leniency.
An earlier case had considered the same issue, confirming that a person can certainly be convicted, but finding that extreme leniency can be given if the formerly illegal conduct was consensual and unaccompanied by circumstances of aggravation.
Justice McClellan, who wrote the leading judgment, found that community standards at the time would have deemed Mr Orkopoulos’ conduct both illegal and deserving of significant penalty, stating that:
“the offender… must have well known this to be the case. Notwithstanding this, he chose to place himself above the law and commit offences… In my view no leniency should be extended to the offender because of the fact that subsequently… the Legislature then chose to reflect what it must have perceived to have been a change in community attitude to reduce the age of consent for homosexual intercourse to sixteen years.”
Community attitudes towards homosexuality had been changing even before parliament increased the age of homosexual consent.
But the court noted that the first act that Mr Orkopoulos performed was seven or eight years before the change in the law, and the last four were five years before the change. This “significant period” was highly relevant in the eyes of the Court. The severe impact of his predatory conduct on the victims was also taken into account.
The Court further considered the important objectives of retribution and deterrence. Deterrence, either to the general public or to Mr Orkopoulos himself, was no longer a significant factor because the offending conduct was no longer against the law, but Justice McClellan noted that “obedience to the law as it exists remains the obligation of every person.”
Mr Orkopoulos ultimately had his minimum sentence reduced from 9 years and 3 months in prison, to 9 years.