High-Risk Offenders: Post-Sentence Supervision and DetentionDiscussion and Options Paper ● January 2007 ● Sentencing Advisory Council
High-Risk Offenders: Post-Sentence Supervision and DetentionDiscussion and Options Paper
Sentencing Advisory Council, January 2007
Contents
Preface
Contributors
Abbreviations
Have Your Say
Warning to Readers
Questions
Chapter 1 Background
Chapter 2 Purposes of Post-Sentence Schemes
Chapter 3 Determining Risk: Who are ‘High-Risk’ Offenders?
Chapter 4 The Current Framework
Chapter 5 The Merit of Continuing Detention
Chapter 6 Structure of a Supervision and Detention Scheme
Chapter 7 Relationship with Existing Schemes
Appendix 1: Case Studies
Appendix 2: Tables
Appendix 3: Submissions
References
Preface
Around Australia, and in many other jurisdictions in the common law world, governments and legal systems are grappling with the practical and jurisprudential problems posed by high-risk offenders whose sentences have expired but who are still considered to be dangerous. Over recent years particular attention has been focused upon sex offenders whose offending has been of great community concern. One response has been to create continuing detention or supervision schemes which extend the state’s control over an offender beyond the end of the sentence.
The law has responded in many ways to high-risk offenders, including allowing courts to impose indefinite sentences at the time of sentence. But allowing courts to extend detention beyond the expiration of a finite term involves a major change in legal philosophy, from punishing offenders for offences already committed to holding them in custody for offences they might commit. This is not only problematic philosophically, but scientifically as well, for the ability to predict future behaviour accurately is still limited.
Balancing the community’s desire for safety with an offender’s right to be released once the sentence has been served presents a challenge to the criminal justice system and the Attorney-General’s reference to the Council reflects these concerns. Our inquiry addresses two major issues: the merit of introducing a continuing detention scheme in Victoria and, if such a scheme were introduced, its structure.
This Discussion and Options Paper follows the release in September 2006 of an Issues Paper, High Risk Offenders: Continued Detention and Supervision Options, which examined the law in Victoria and other jurisdictions in relation to high-risk offenders, and which produced a great deal of useful comment. This Discussion and Options Paper is accompanied by the publication of a Research Paper, Recidivism of Sex Offenders by Dr Karen Gelb, which examines the evidence about the prevalence and nature of sexual offending, characteristics of sex offenders, recidivism rates among different kinds of sex offenders and the efficacy of treatment programs. It was produced in order to provide an empirical context to some of the theoretical issues raised in the Discussion and Options Paper.
The Discussion and Options Paper is extensive and detailed, as is warranted by an inquiry into matters as serious as community safety and individual liberty. It examines the legal, philosophical and scientific bases of continuing detention schemes and provides detailed information about the nature and operation of similar schemes in a number of cognate jurisdictions. It poses the general question of whether a continuing detention scheme should be introduced in Victoria, and, in response to the contingent issue of the possible nature of such a scheme, sets out a structure which addresses the particular questions raised in the terms of reference. The Council believes that by providing a detailed outline of a possible scheme and its justifications, comments on this Paper can be focused, responsive and practical. The model presented for discussion does not imply that the Council has arrived at any final view about any of the terms of reference, but simply presents one possible option for consideration.
The Council is grateful to Professor Bernadette McSherry of the Faculty of Law, Monash University who wrote the Issues Paper and whose work has informed this publication. It is also grateful to the people and organisations who contributed to the development of this Discussion and Options Paper. Within the Council Secretariat, Felicity Stewart, Victoria Moore, Karen Gelb and Andrea David worked tirelessly and collegially to bring the various sources and themes together and to produce the discussion model.
The Council looks forward to the next round of community and professional input in order to produce its final report on this issue by the end of March, 2007.
Arie Freiberg, Chair, Sentencing Advisory Council
Contributors
Authors: Ms Andrea David, Dr Karen Gelb, Professor Bernadette McSherry , Ms Victoria Moore, Ms Felicity Stewart
Sentencing Advisory Council
Chair: Professor Arie Freiberg
Deputy-Chair: Ms Thérèse McCarthy
Council Members: Ms Carmel Arthur, Ms Carmel Benjamin AM, Mr Noel Butland, Mr Bernard Geary OAM, Mr David Grace QC, Professor Jenny Morgan, Mr Simon Overland, Mr Jeremy Rapke QC, Ms Barbara Rozenes
Chief Executive Officer: Ms Jo Metcalf
The Council thanks the organisations and individuals who contributed to the preparation of this paper, including: CASA Forum (Victorian Centres Against Sexual Assault Inc), the Criminal Bar Association, Corrections Victoria, Department of Justice Library, Forensicare, New Zealand Department of Corrections, New South Wales Department of Corrective Services, Queensland Corrective Services, Thames Valley Probation Area (UK), Victoria Police, Victoria Legal Aid, the Victorian Bar and Western Australian Department of Corrective Services.Ms Shona Barrie, Dr Doug Bell, Ms Astrid Birgden, Ms Prue Boughey, Ms Julie Bransden, Ms Deb Bryant, Ms Kelly Burns, Mr Michael Burt, Ms Jenni Coady, Mr Tom Dalton, Dr Virginia Dods, Dr Lynne Eccleston, Ms Judy Flanagan, Ms Elizabeth George, Ms Shelley Goldwasser, Ms Alana Hodgins, Inspector Richard Koo, Ms Sonia Law, Ms Tonye Lee Segbedzi, Mr Brian Martin, Ms Lisa McGowan, Mr Noel McNamara, Mr Steve Medcraft, Mr Rob Melasecca, Professor Paul Mullen, Professor James Ogloff, Ms Llewellyn Prain, Mr Christopher Roney, His Honour Chief Judge Michael Rozenes, Mr Max Saxby, Dr Danny Sullivan, Ms Alison Tansley, Ms Fiona Tarrant, the Honourable Justice Bernard Teague, Ms Vivienne Topp, Ms Elise Traynor, Mr Nick Turner, Dr Margaret Ubergang, Ms Sarah Walker, Mr Jayson Ware.
Abbreviations
A Crim R: Australian Criminal Reports
ACT: Australian Capital Territory
AJA: Acting Justice of Appeal
ALJR: Australian Law Journal Reports
All ER: All England Law Reports
ALR: Australian Law Reports
ANCOR: Australian National Child Offender Register
APB: Adult Parole Board
CASA: Centres Against Sexual Assault
CBA: Criminal Bar Association
CJ: Chief Justice
CLR: Commonwealth Law Reports
CoSA: Circles of Support and Accountability (Canada, England and US)
CPAV: Care Plan Assessments Victoria
CSC: Correctional Services of Canada
C(SSO)A: Crimes (Serious Sex Offenders) Act 2006 (NSW)
Cth: Commonwealth
DCS: Department of Corrective Services
DHS: Department of Human Services
DPP: Director of Public Prosecutions
DP(SO)A: Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
DSM-IV: American Psychiatric Association’s Fourth Diagnostic and Statistical Manual of Mental Disorders
DSOA: Dangerous Sexual Offenders Act 2006 (WA)
DSORC: Dangerous Sexual Offenders Review Committee (WA)
DSPD Program: Dangerous and Severe Personality Disorder Program (UK)
ESO: Extended Supervision Order
ESORB: Extended Supervision Order Review Board (Vic)
HRO Order: High-Risk Offender Order
HRO Panel: High-Risk Offender Panel
ICCPR: International Covenant on Civil and Political Rights
IMP: Individual Management Plan
J: Justice (JJ plural)
JA: Justice of Appeal (JJA plural)
LA: Lead Authority
MACNI: Multiple and Complex Needs Initiative (Victoria)
MAPPA: Multi-Agency Public Protection Arrangements (UK)
MAPPP: Multi-Agency Public Protection Panel (UK)
MAPPS: Male Adolescent Program for Positive Sexuality (Victoria)
NSW: New South Wales
NSWCCA: New South Wales Court of Criminal Appeal
NSWSC: New South Wales Supreme Court
NT: Northern Territory
NZ: New Zealand
OLR: Order for Lifelong Restriction (Scotland)
OMP: Offender Management Plan
P: President (judicial office)
QB: Law Reports, Queen’s Bench
QC: Queens Counsel
Qld: Queensland
RMA: Risk Management Authority (Scotland)
RMP: Risk Management Plan (Scotland)
s: Section (ss plural)
SA: South Australia
SASC: South Australian Supreme Court
SASR: South Australian State Reports
SCCSOP: Statewide Clinical Coordinator of the Sex Offender Program (NSW)
SCR: Canada Supreme Court Reports
SOMU: Sexual Offenders Management Unit (Vic)
SOP: Sex Offenders Program
SOPO: Sex Offender Prevention Order (UK)
SSOMA: Serious Sex Offenders Monitoring Act 2005 (Vic)
SORC: Serious Offences Review Council (NSW)
SSORC: Serious Sexual Offenders Review Committee (Qld)
Tas R: Tasmanian Reports
UK: United Kingdom
Vic: Victoria
VLA: Victoria Legal Aid
VR: Victorian Reports
VSC: Supreme Court of Victoria
VSCA: Supreme Court of Victoria Court of Appeal
WA: Western Australia
WAR: Western Australian Reports
YTC: Youth Training Centre
Have Your Say
Providing Comments on the Discussion and Options Paper
This paper outlines some of the existing legal mechanisms in Victoria and in other jurisdictions to manage offenders who may pose a serious risk to the community on their release from prison. The Council welcomes comments on the questions raised in this paper.
Comments can be provided in writing by mail, email () or fax, or by phone or in person. Written comments can also be uploaded to the Council’s website.
You may choose to address each of the questions raised in the paper, or just the questions of most interest to you. You may also wish to provide comments on other issues or options not discussed in the paper or make a general comment. If you need any assistance in preparing your comments and/or need access to an interpreter, please contact the Council.
DUE DATE: Friday 23 February 2007
Warning to Readers
This paper contains subject matter—particularly in quotes and case studies—which may be distressing to readers or may re-traumatise people who are victims of crime.
The following Helplines may be of assistance to readers: Lifeline: 131 114. Victims of Crime Helpline: 1800 819 817. Victims Support Agency: 03 8684 6700. Centres Against Sexual Assault: 1800 806 292. Kids Helpline: 1800 551 800
Readers may find the following publication of assistance: Victims Support Agency—A Victim’s Guide to Support Services and the Criminal Justice System. This publication is available through the Victims Support Agency or at: http: //
Questions
- Should Victoria introduce a post-sentence scheme that would allow for the continuing detention of offenders who have reached the end of their custodial sentence but who are considered to pose a continued and serious danger to the community?
- Are there any alternatives or additional reforms that should be considered instead of, or in addition to, a continuing detention scheme?
- If continuing detention is introduced in Victoria, should it be a separate order that operates alongside the current extended supervision order scheme, or should continuing detention and extended supervision be integrated into one streamlined scheme (such as suggested in the Discussion Model)?
- If a new post-sentence scheme is introduced, is there a need to establish an independent body (such as the High-Risk Offender Panel suggested) to oversee the operation of the scheme? If yes, what should its functions be?
- If an independent authority, such as a High-Risk Offenders Panel, is established, what should its membership be?
- If a new post-sentence detention scheme is introduced in Victoria, what should its purpose or purposes be?
- If a new post-sentence detention scheme is introduced in Victoria:
(a)to what offences should such a scheme apply?
(b)what other eligibility criteria should apply (for example, that the offender is currently serving a custodial sentence)?
- If a new post-sentence detention and supervision scheme is introduced in Victoria:
(a)what processes should be established for deciding whether an application should be made and for making an application?
(b)who should be empowered to make applications under the scheme (for example, the Secretary to the Department of Justice as is currently the case for extended supervision orders, or the Director of Public Prosecutions)?
(c)when should applications be permitted to be made (for example, at any time during an offender’s sentence or at an earlier stage)?
- If a new post-sentence detention and supervision scheme is introduced in Victoria:
(a)in what forum should applications be heard (for example, in either the County Court as is currently the case for extended supervision orders, or the Supreme Court)?
(b)who should be responsible for making decisions about whether the legal test has been satisfied and if so, whether an order should be made (for example, a Supreme Court or County Court judge, an expert panel, a jury or a combination of these)?
- If a new post-sentence detention and supervision scheme is introduced in Victoria:
(a)should there be provision made for a preliminary hearing?
(b)should there be a power to make an interim detention or supervision order, and if so, how should this order be structured (for example, should the offender be able to lead evidence or to challenge evidence led, what should the maximum duration of the interim order be, should there be a power to renew an interim order, and should any limits be set on the maximum number of times that the interim order can be renewed)?
- If a new post-sentence scheme is introduced in Victoria, what information should a court be permitted to consider in determining an application?
- If a new post-sentence scheme is introduced in Victoria:
(a)what should be the test for making a post-sentence detention or supervision order?
(b)what should be the standard of proof? For example:
- high degree of probability (as for extended supervision);
- balance of probabilities; or
- beyond reasonable doubt?
- If a new post sentence scheme is introduced in Victoria, what other legislative criteria should guide decisions made under the scheme? For example, should the principle of reciprocal obligation be expressly recognised?
- If a new post sentence continuing detention scheme is introduced in Victoria, should orders be of fixed duration (with a power to renew the orders if necessary) or indefinite? If of fixed duration:
(a)what should be the maximum length of an order?
(b)should any criteria be provided to assist courts in determining the appropriate length of the order (for example, a requirement to take into account the sentence imposed for the original offence)?
(c)should an order be able to be renewed (for example, by an application for a new order)? If so:
- when should an application to renew the order be made?; and
- should any additional safeguards be included (for example, to limit the total period for which a person can be subject to an order, and/or setting different criteria for determining if the order should be renewed)?
- If a new post-sentence scheme is introduced in Victoria:
(a)who should determine whether the offender is detained in custody or supervised in the community?
(b)how should the other conditions be set (for example, by a court, by an expert panel, by the Adult Parole Board, prescribed in legislation or a combination of these options)?
(c)what should the purpose, or purposes of conditions be?
- If a new post-sentence scheme is introduced in Victoria:
(a)what should be the principal consideration in determining where offenders are housed (for example, where an offender’s rehabilitation needs can best be met and/or the least restrictive means of managing the offender’s risk)?
(b)should offenders who are subject to a post-sentence detention order be detained:
- in prison;
- in separate facilities within prison grounds; or
- in another facility?
(c)if offenders are detained in separate facilities, should they be given non-residential access to prison-based programs, facilities and services?
(d)if a new post-sentence scheme is introduced that only provides for continuing detention and does not replace the existing extended supervision order scheme, would an inconsistency arise with the recent amendment to the Serious Sex Offenders (Monitoring) Act 2005 (Vic) in relation to the housing of offenders on extended supervision orders on prison grounds?
- If a new post-sentence scheme is introduced in Victoria:
(a)what arrangements should be made for the management of offenders subject to detention and supervision orders under the scheme?
(b)who should have responsibility for the management of these offenders (for example, the Adult Parole Board and Department of Justice as is currently the case, or a new body such as the High-Risk Offender Panel)?
(c)if a High-Risk Offender Panel, or similar body, was established to manage offenders under post-sentence detention and supervision orders, what should be the relationship between this body and the Adult Parole Board while an offender is still under sentence?
- If a new post-sentence scheme is introduced in Victoria, what provision should be made for the variation, review and appeal of orders under the scheme?
- If a new post-sentence scheme is introduced in Victoria, what process should be adopted for responding to breaches?
- If a new post-sentence scheme is introduced in Victoria, should there be specific provision for ancillary orders, such as suppression orders?
- If a new post-sentence scheme is introduced in Victoria, should there be any additional measures to enhance transparency?
- If a new post-sentence scheme is introduced in Victoria:
(a)should there be provision for the right for an offender to be heard, the right to legal representation and the right to receive legal assistance?
(b)if a scheme includes the right to legal assistance, what should funding cover (for example, legal representation for hearings, reviews and (where relevant) appeals and psychiatric reports)?
(c)should the funding be means tested or should offenders have a right to legal assistance regardless of their income and assets?
- If a new post-sentence scheme is introduced in Victoria, what other safeguards should be included in the scheme?
- If a new post-sentence scheme is introduced in Victoria, should victims have the same rights as they currently do under the existing extended supervision order scheme?
- If a new post-sentence scheme is introduced in Victoria, should any changes be made to:
(a)the way indefinite sentences are structured are the Sentencing Act 1991 (Vic)?
(b)the way offenders under an indefinite sentence are managed?