Dangerous offenders Legislation

The new Dangerous Prisoners (Sexual Offenders) Act (2003) In Queensland permits prisoners to be kept in prison beyond their release date where a court finds that there is a 'high degree of probability' that they represent a 'serious danger to the community'. Other jurisdictions have enacted similar legislation to restrict the release of prisoners assessed to be dangerous. Do you think that dangerousness legislation of this sort is justified or unjustified?

Several states across the Country have enacted or attempted to enact legislation which can enable detention of a prisoner past his/her release date. This type of legislation's general purpose is to provide a mechanism whereby prisoners who, if released pose an unacceptable risk of committing further serious offences, may be detained where it is deemed appropriate to do so for the protection of the community (Field, 2003). The most recent of these being the Queensland Government's passing of the Dangerous Prisoners (Sexual Offenders) Act 2003. Similar laws were introduced in New South Wales in 1994, however they were ultimately ruled invalid by the High Court. Prior to this in 1991 Victoria enacted legislation known as the Community Protection Act 1990, which allowed for the continued detention of one prisoner known as Garry David. Whilst this Act applied to no one else the Victorian Government attempted to broaden the legislation with Draft Bill proposals which ultimately lapse in the face of wide ranging criticism from lawyer, psychiatrists and academics. (Greig 1995)

This type of legislation has been devised to allow for the detention of people based upon assessments of risk of re-offending, this essay will explore the concerns with these practices. This essay further aims to explore the moral and practical implications of such sentencing provisions and the impact it has on the whole Justice System. The writer will also address the conflicting goals of Corrections and the purpose and impact of indefinite sentencing while exploring the justifications against such legislation. This essay also aims to show that even though we may feel disgust for these types of offences we must remember the fundamentals of the Criminal Law system and understand that people are entitled to equality and fairness in the eyes of the law.

It has been suggested that this type of legislation has largely been introduced to fill a perceived gap (Field, 2003). Whilst most jurisdictions have sentencing provisions that allow for indefinite sentencing at the time of original judgement there are few which have legislation which allows for the extension of a persons detention based upon the presumption that they may commit further crimes. This type of legislation provides a framework whereas an application can be made to further detain a prisoner who is due to release as they are deemed to be an unacceptable risk of further offending and their further detention will protect the community (Field, 2003).

Whilst it is generally accepted that the community broadly welcomes such imposing and punitive legislation, it is imperative that our disgust for these offences/offenders does not prevent us from finding the injustice on an ethical and moral basis (Wortley and Smallbone, 2003).

One of the fundamental principles of the Criminal Law System is the presumption of innocence until proven guilty (McSherry, 2003). By enacting punitive legislation such as the examples given above, it has been said that it is removing this Common law right from the individual (Greig, 1995). It has also been said that it creates an exception to the general principle of law that no person shall be imprisoned unless a court comprised of Judge/Jury is convinced, beyond reasonable doubt that the person committed a very serious offence. Thereby effectively allowing people to be detained without the burden of proving guilt (Keon-Cohen, 1992).

Whilst it is appreciated that the offenders who will be subject to such legislation are in the worst case category it then opens up a subjective element to decide who it applies to and who is doesn't apply to. Where is the line drawn, the 13% of Queensland's prison population who are sex offenders are unlikely to be comforted by the fact that the act will only effect very serious offenders (Bennett, 2003). With a Criminal Law system which places so much emphasis on parity of sentencing how is that some will be further detained and some simply released. This allows for too many arguments about truth and equality in sentencing and injustices created by our legal system. (NSW Law Commission, 2004).

Full time imprisonment is the gravest sanction and deprivation of ones liberty is the most serious form of punishment that can be imposed under our domestic law (Keon-Cohen, 1992). Because of this it is a fundamental principle of sentencing at Common Law that imprisonment is a last resort and only to be imposed where a non-custodial disposition is not appropriate (Greig, 1995). Once an offender has been convicted of a crime and sentenced to a term of imprisonment they are effectively paying their dues. Upon completion of their original sentence, under existing law, they are said to have paid their debt to society and are entitled to be released as a free person. However with the introduction of such legislation we are effectively allowing for the people to do their time over and over again (Field, 2003).

One of the paramount responsibilities in sentencing is to ensure that the goals of Corrections are neatly balanced to ensure the best outcome. What is often overlooked is that the state has two functions: its parens patriae function, where the state must protect the community and on the other hand, they are equally responsible for ensuring vulnerable people are treated in humane manner (Greig, 1995). The consequences of making the correct choice are radically different in social terms, one leads to moral condemnation and the loss of rights to the prisoner, the other to a desire to help the vulnerable and maximise those freedoms when deemed appropriate.

The goals of Imprisonment include: retribution, incapacitation, deterrence and rehabilitation The First goal to consider is retribution being based upon the eye for an eye principle aims to subject the offender to punishment because of their actions. By enacting legislation to detain offenders indefinitely it is applying the goal of retribution prospectively on offences that have not yet been committed. Secondly incapacitation, which is the desire to protect the community by detaining the offender based on the rationale that it seeks to prevent further crimes. With legislation like the one in question its principle goal is to incapacitate the offender so they cannot commit