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MICHAEL BARNETT[*] AND ROBERT HAYES[†]
In general terms, civil commitment describes a process for the control of a person for a therapeutic or public health purpose using civil rather than criminal processes. An obvious and widely used example is the involuntary detention for treatment of a person assessed as mentally ill.[1] A less obvious example is the civil commitment of people who pose a risk to public health.[2] These two forms of civil commitment have been used for more than a hundred years.[3] Western democratic societies have tolerated those limited forms of civil commitment of those suffering illness or disease because of the high standing of the medical profession administering the procedure and the advice that civil commitment in certain situations might be good for the health and safety of both patient and public. Those forms of civil commitment have a clear therapeutic objective.
However, civil commitment has more recently been extended to detain certain criminal offenders after their sentence has expired. In such schemes, offenders who are already imprisoned for an offence are detained for a further period of detention on the grounds that they are likely to commit a further offence if they were released. The rationale for such laws is that this course of action is necessary to protect the community from the risk of such offenders committing further serious offences.
Such laws have been subject to extensive criticism because they allow detention and other punitive consequences, without trial according to basic tenets offered to those accused of criminal offences such as proof beyond reasonable doubt, proportionality, restricting punishment only in relation to past conduct, having finality of sentence,[4] and strict evidentiary rules.[5]
In the past four years laws have been passed in several Australian states to address the purported need to detain sexual offenders for longer than other offenders. The new laws have been justified by a belief that this category of offenders poses an unacceptable risk to the community, who need to be protected. The laws are the Dangerous Prisoners (Sexual Offenders) Act 2003 in Queensland (the ‘Qld Act’), the Crimes (Serious Sex Offenders) Act 2006 in New South Wales (the ‘NSW Act’), and the Dangerous Sexual Offenders Act 2006 in Western Australia (the ‘WA Act’). Such schemes have been assessed by the High Court in Fardon v Attorney General for Queensland[6] as constitutionally valid – a decision which has also been the subject of criticism, primarily based upon the argument that the Court mischaracterized the schemes as not imposing punishment but instead only community protection.[7]
This paper assesses the judicial interpretation of these three schemes by their respective State courts. The paper first discusses the nature of the schemes and then argues that the courts’ interpretation and application of the schemes highlight the disadvantages and deficiencies of such schemes. They reveal concerns with procedural fairness, concerns about the availability and effectiveness of rehabilitation programs both in prison and in the community, the problematic nature of risk assessment and confusion about the standard of proof. They also raise contentious issues about the ethical and legal responsibility of Government to ensure that adequate programs are available for rehabilitation.
II. NATURE OF SEXUAL OFFENDER CIVIL COMMITMENT SCHEMES
The Queensland, New South Wales and Western Australian Acts are presumably justified internally by the respective governments on the basis that these types of offenders are more dangerous than any other type. The stated objectives of the Australian laws are to protect the community from certain serious offenders and to provide control, care and treatment to facilitate their rehabilitation, although in contrast to Queensland and NSW, the Western Australian law makes no reference to rehabilitation.[8] Civil commitment for sex offenders in a variety of forms is also used in a number of other countries, including in some jurisdictions of the United States.[9]
The key elements of the schemes may be shortly stated.
• The Queensland, New South Wales and Western Australian Acts (the ‘three Acts’) apply to a wide group of sex offences including sexual offences against children: the Qld Act applies to persons convicted of a serious sexual offence which means a sexual offence involving violence or against children[10]; the NSW Act to persons convicted of a serious sexual offence or an offence of a sexual nature and can cover more than offences against children, for example, indecent acts such as bestiality[11]; and the WA Act to persons imprisoned for a serious sexual offence which means a sexual offence where the maximum penalty is seven or more years (this includes sexual offences against children and sexual penetration without consent). [12]
The three Acts require an application to be made in the last six months of the offender’s term of imprisonment:[13] in New South Wales and Queensland, by the State Attorney General, and in Western Australia, by the Director of Public Prosecutions, to the Supreme Court.[14]
The three Acts set a standard of proof: for Queensland, the Court must be satisfied to ‘a high degree of probability that the offender is a serious danger to the community’;[15] for New South Wales, the Court must be satisfied to a high degree of probability that the offender is likely to commit a further serious offence and that adequate supervision will not be provided by an extended supervision order;[16] for Western Australia, the Court is to be satisfied by acceptable and cogent evidence and to a high degree of probability that the offender is a serious danger to the community.[17]
The three Acts impose detention orders which in Queensland and Western Australia are indefinite, and in New South Wales are for a maximum period of 5 years, but with subsequent orders being possible.[18]
The three Acts require an annual review of any order for civil detention and, in exceptional circumstances, permit the Court to grant early review but only after the first annual review: see Qld Act and WA Act.[19]
The three Acts allow appeals on behalf of both the offender and the prosecuting agency.[20]
All three schemes allow extended supervision orders to be made as an alternative to orders for continuing detention in prison.[21] All three grant a discretion in the court not to make the order sought.[22] The Crown as represented in each of the jurisdictions in practice will couch orders sought in terms of a continuing detention order or an order for supervision but often push strongly for a detention order.[23]
Breaches of release orders can result in a return to detention.[24] Conditions of supervised release can be varied and onerous including weekly reporting to police and other authorities, curfew requirements, attending programs and medical practitioners, prohibitions against using alcohol or drugs, urine screening, prohibitions on attending places such as licensed places serving alcohol, reporting on any employment, restrictions on employment, contact with family and victims, short term accommodation, leaving the State, notifying authorities of details of any motor vehicles, wearing electronic bracelets, not breaching any laws, restrictions on social activities such as joining clubs and other organizations, and notification of all new personal relationships.
III. STATE COURT INTERPRETATIONS AND DECISION MAKING
There is a growing body of jurisprudence on the sexual offender civil commitment schemes.[25] Some offenders come before the court on a number of occasions for annual reviews, appeals, alleged breaches of conditions or variations of conditions. While in the majority of cases the courts across each jurisdiction have imposed orders as sought by the Crown there have been a few cases where a court has refused to make any order[26] or in more cases, where contrary to the submission of the Crown, a court has made a supervision order rather than a continuing detention order. The cases raise a wide range of issues about the nature and content of the legislation, the role of the courts and that of government and its bureaucracy.
IV. PROCEDURAL FAIRNESS ISSUES
A. The inherent power imbalance between the State and the offender
Civil detention in effect makes the process an administrative or civil matter.[27] However, administrative law offers no remedy that can properly address any imbalance of power as between citizen and State.
In the case of the about-to-be-released sex offender the power imbalance strongly reduces the effect of any protection that administrative law can offer. The applicant for civil commitment, the State, has available to it the full resources of the prison and forensic mental health services which have had the responsibility for the control and management of the sex offender over what will almost inevitably have been a sustained and lengthy period of time in preparing and prosecuting its case of “risk”. The cases demonstrate this imbalance. The State in many cases engages three psychiatrists to give evidence about the level of risk and also evidence from correctional authorities.
In contrast, the respondent is likely to have limited resources in terms of legal representation and in obtaining independent psychiatric assessment and evidence on the risk posed and its management. Offenders may be unable to obtain their own expert evidence because of costs and be met by three experts on behalf of the State. Director of Public Prosecutions for Western Australia v Williams[28] was one case where the offender had a psychiatrist give evidence on his behalf, which included trenchant criticism of the reliability of risk assessments. This evidence appeared to play a role in the dismissal of an application for detention or supervision order.
There are also concerns about the impartiality or at least perceptions about impartiality, as under the schemes in each State the same psychiatrists tend to give evidence. Moreover, on some occasions, employees or consultants engaged by Corrective Service Departments may prepare reports or give evidence, for example, in relation to participation in sex offender programs and psychological profiles which may mean that they feel constrained in giving objective evidence that may involve criticism of the Department’s performance or handling of an offender.[29]
B. Notification and time to prepare
There can also be problems of a lack of procedural fairness through the prosecution not allowing the offender sufficient notice of the impending action. For example, in Attorney General for Queensland v Watego[30] the Attorney-General’s application was so late that the offender had only a day in which to deal with the issues. Moreover, the offender in that matter was handicapped by his intellectual capacity and the constraints of incarceration.[31] In Attorney-General for Queensland v Nash, because of the lateness of the issuing of proceedings, the offender’s counsel was only able to speak to his client by telephone for twenty minutes before the hearing.[32] There is clearly a pressing need for a reasonable time for offenders to consider their position and obtain adequate advice and properly prepare a case, particularly given that such orders may increase the length of their detention and thus concern their fundamental liberties.
In Welford, Attorney-General for Queensland v Francis,[33] Mackenzie J distinguished Attorney-General for Queensland v Watego[34] and Attorney-General for Queensland v Nash[35] and found that there was no denial of procedural fairness in circumstances where the offender was served one month before the expiry of sentence and where no responsibility could be laid with correctional service officers that the offender had not been made fully aware of his right to legal advice. Thus, the margin for error is small and there is a considerable responsibility on offenders who are in prison to make sure that they act expeditiously on their own behalf.
Moreover, rushed applications and hearings can lead to significant deficiencies in evidence which make it difficult for courts to make appropriate decisions. This was commented on by Mackenzie J in Director of Public Prosecutions v Foy.[36]
A. Rehabilitation in detention: a mixed bag
A perceived failure to participate in programs is clearly a strong factor in making orders for continuing detention, with the Courts apparently concluding that such resistance or hostility increases the risks of re-offending.[37] However, the cases reveal very significant inadequacies in the availability, quality and range of services.
Overall there is a lack of programs tailored for the needs of particular offenders. Some offenders will miss out on treatment programs simply because they may fail administrative protocols for some programs such as time remaining in prison or meeting the appropriate classification requirements.[38] There may be long waiting lists or delays for programs, which may prejudice an offender’s claim for release.[39] In Attorney General for New South Wales v Cornwall, there was a continuing failure to treat the offender’s long standing personality disorder with medication while in prison even after the need for treatment had been identified in earlier court proceedings.[40] In Attorney-General for New South Wales v Jamieson,[41] the offender in gaol was delayed being placed in CUBIT (Custody-Based Intensive Treatment - a NSW sex offenders program) for about 3 years.[42]
Some non-child sex offenders may be unwilling to participate because of their feelings about child sex offenders who are in such programs[43] or fears for their safety.[44] Other may feel great discomfort in confronting their past in the presence of other prisoners.[45] Some offenders may be reluctant to participate in sex offender courses because of physical ailments and language difficulties[46] or lack of verbal intelligence.[47] Others may fear a lack of confidentiality.[48]
Some prisoners may be unlikely to benefit from prison-based programs with the real prospect that they will not receive appropriate therapeutic treatment.[49] Some courses may not be available at all prisons.[50] There may be no courses and strategies devoted to dealing with drug and alcohol abuse, which may be crucial factors in offending and re-offending.[51]
Another potential problem is that the denial of guilt will mean that an offender is denied entry into many sexual offender rehabilitation programs even if the offender wants to participate in such schemes. The reasons for such decisions are not always principled. One reason is a concern that the inclusion of prisoners who deny their guilt will undermine the group counselling sessions. Another reason is that in prison there are no sufficient resources for one on one counselling that might be appropriate for offenders who deny their guilt.[52]
There are also concerns about the effectiveness of prison programs for sexual offenders. For example, the CUBIT program has operated in New South Wales since 1999. Suggested benefits according to those who coordinate or manage such programs are that the group dynamics reduces deficits in interpersonal relationships and increases ‘new ways of thinking’ and reduces alienation.[53] However, as acknowledged, studies have only indicated small treatment benefits in terms of reducing sexual reoffending[54] and there are concerns about the reliability of such studies because of the limitations of sample sizes and lack of longitudinal studies and it being based on re-incarceration rates rather than re-conviction rates.[55] Moreover, there is no solid evidence that a CUBIT style program as adopted in around Australian jurisdictions is more effective than other styles including individual counselling.[56]
VI. POST DETENTION REHABILITATION: THE LACK OF ADEQUATE POST PRISON SERVICES AND PROGRAMS
The reported cases reveal the chronic lack of proper, secure facilities that do not unduly restrict the rights of the offender and appropriate care and treatment including rehabilitation programs and services.
A number of judges have commented on the lack of resources and effective treatment available for serious sex offenders released into the community. Across the three jurisdictions there is no dedicated sex offenders program available in the community. For example in Queensland the High Intensity Sexual Offenders Program was not delivered in a community setting.[57] In Attorney General v Jamieson the Court noted that there were no community-based treatment programs of sufficient intensity to meet the high-risk needs of the offender in that case and that ‘was a matter for concern’.[58]
One particular problem identified by the courts, is the lack of appropriate temporary accommodation for offenders under the schemes who have been released but have not yet found their own suitable accommodation and employment.[59] In one case involving Mr Fardon it was recognised that he had been earlier released into the community with very little, if anything, in place for his support and reintegration into the community with nowhere to live and no money and his only support network people he had known in prison. It was of no surprise that he reverted to drug and alcohol abuse.[60]
In Western Australia v Alvisse[61] the offender had not received anti-libidinal medication as required and had not been placed in a sex offender program despite that being a condition of his supervised release.[62]
There is also a general absence of intensive courses such as CUBIT,[63] which can mean that prisoners who otherwise might be released must stay in prison.
In Attorney-General for Queensland v Pearce one reason for the Court making an order for continuing detention in preference to a supervision order was the unavailability of a suitably secure nursing home facility for a physically frail 84 year old offender where it could be ensured that he would not come into contact with children.[64] In Attorney-General for Queensland v Robinson[65] the absence of a social network for the offender within the community was a factor in the need for a continuing detention order. In Attorney-General for Queensland v Toms,[66] the Court noted that the offender had to leave a suitable and positive place of accommodation because the media had shown some interest in his presence although the offender constituted no risk to children.[67] He was ‘relocated’ to a place where he had ‘heavy drinkers’ around him, which was isolated and offered him no opportunity for positive interaction or employment. This was despite the opinions of the psychiatrists who gave evidence in the case who stressed the importance of the offender having ‘reasonably sited accommodation, meaningful employment and a supportive social network’[68]
There are also concerns about the lack of post prison services in rural areas.[69] There is a lack of resources to support the legislation which on occasions has been conceded by counsel for the State.[70] There also may be a lack of crucial substance abuse programs in the community, particularly in rural areas.[71]
VII. A LACK OF PROPER COORDINATION AND PLANNING
Courts have commented on the need for adequate planning and preparation for the release of prisoners into the community including a need for a properly funded system that allows for closely supervised reintegration of this special class of prisoner into the community.[72] There is often a need for one experienced person to be in charge of supervising the planning and reintegration of an offender into the community.[73] This does not always happen and often there can be gaps in service or poor liaison between various services that might have an input into the person’s experiences in the schemes and rehabilitation such as Corrective Services and the Attorney General’s departments.
Planning for a person’s release needs to commence well before the person is due to be released. Many will need a coordinated and integrated rehabilitation program involving corrective service officers and community organizations with a reintegration support officer to provide ongoing support.[74]
In Attorney–General (NSW) v Quinn,[75] Hall J referred with approval to comments made by Mackenzie J in Attorney-General (Qld) v Francis[76] that the State must take prompt and effective administrative action to assist where rehabilitation could reintegrate an offender back into the community with, where necessary, intensive supervision at least in the early stages.[77] In the instant case Hall J recommended the development of a comprehensive management plan that was supervised by a consultant psychiatrist.[78]
Courts take into account the offender’s anti- relapse plans and have referred to them as poor or ‘primitive’.[79] However, many prisoners have had dysfunctional and traumatic family backgrounds and have been the victims of abuse including in many cases violence and sexual abuse, poor educational opportunities, learning disabilities, poor employment histories. Many offenders will have led unstructured lives, often in prison, with few resources and will therefore need intense and practical support in the community including help with accommodation, transport, introductions to suitable employment, graduated work entry and assistance with budgeting and the activities of daily living, together with a buddy system or mentoring.[80] More than ever they need intensive assistance and programs in gaol and within the community.
VIII. THE PROBLEMATIC NATURE OF RISK ASSESSMENT
In each of the three pieces of legislation there are broad and value-laden tests to assess whether the risk of a person re-offending justifies further detention or continuing supervision within the community. The Western Australian and Queensland legislation require the Court to a find that a person is a ‘serious danger to the community’ which means that it must be satisfied that there is an ‘unacceptable risk that the person would commit a serious sex offence’.[81] The Court must be satisfied of those matters ‘by ‘acceptable and cogent evidence’ and ‘to a high degree of probability’.[82] In New South Wales, the Court must be satisfied to a high degree of probability that the offender is likely to commit a further serious offence and that adequate supervision will not be provided by an extended supervision order.[83] None of these key terms are defined under the legislation. As discussed further below, risk assessment of danger and of re-offending are notoriously unreliable. The use of ’unacceptable risk’ raises many questions: what are the factors to take into account in assessing ‘unacceptable’ and what is the range of unacceptable risk – does it mean a mere risk of reoffending, a likelihood of re-offending, a strong probability of re-offending or a higher degree of probability?
The Queensland, New South Wales and Western Australian legislation each provides a non exhaustive list of factors that the court must have regard to in assessing risk including psychiatric and psychological reports, criminal antecedents, patterns or histories of offending, efforts of the prisoner in attempting rehabilitation and the need to protect the community.[84] This is not a particularly helpful list as it essentially provides for static factors in risk assessment such as the offender’s criminal record and means that courts must place primary reliance on the reports of psychiatrists and psychologists which for the reasons set out below are inherently problematic. The references to efforts at rehabilitation or prisoner compliance with obligations and programs are also extremely problematic. First, there is no evidence that efforts at rehabilitation in prison are a significant or reliable factor in assessing risks of re-offending. The available evidence about such prison programs as CUBIT is problematic and such programs may at best have only modest effects on preventing re-offending Moreover, as discussed above, there may be a wide range of factors or circumstances that affect an individual’s efforts at rehabilitation in prison. Programs may not be available or there may be delays in availability, or available programs may not be suitable to individual needs or some prisoners may have legitimate reasons to avoid or not fully participate in available programs.
Further, it is not clear what ‘acceptable and cogent evidence’ means. Does ‘acceptable’ refer only to the content of the evidence or also to the manner of its presentation and to issues of evidentiary rules? Thus, for example, what should be made of hearsay evidence or evidence that is based on conjecture or opinion? In addition, it is not clear where ‘high degree of probability fits on the scale of proof – is it very close to proof beyond reasonable doubt and can, and should, the courts attempt to apply percentages to the risk?
The Queensland and Western Australian Acts require the court to be satisfied before making an order of detention or supervised release under the legislation that without such an order there is an ‘unacceptable risk’ that the person will commit a serious sexual offence if unconditionally released.[85] The Western Australian courts have provided a broad definition of unacceptable risk as meaning ‘a real risk of substance, not merely a remote possibility’[86] This is of some use but does not provide much clarity or direction.
Gleeson CJ in Fardon said that whether the risk is unacceptable is not ‘devoid of content’ but is not capable of any precise definition.[87] Gleeson CJ stated
It was argued that the test, posed by s 13(2), of "an unacceptable risk that the prisoner will commit a serious sexual offence" is devoid of practical content. On the contrary, the standard of "unacceptable risk" was referred to by this Court in M v M in the context of the magnitude of a risk that will justify a court in denying a parent access to a child. The Court warned against "striving for a greater degree of definition than the subject is capable of yielding". The phrase is used in the Bail Act 1980 (Q), which provides that courts may deny bail where there is an unacceptable risk that an offender will fail to appear (s16). It is not devoid of content, and its use does not warrant a conclusion that the decision-making process is a meaningless charade.[88]
While it can be agreed that the decision-making is not a ‘meaningless charade’ the phrase ‘unacceptable risk’ is broad and value laden. Neither the phrase nor the legislation that use it provide the factors to be considered and not to be considered in making such a judgment nor give any indication as to their weight, other than providing that the protection of the community is the paramount consideration. As suggested in DPP v Manning[89] a court might consider the particular nature of the risk posed by the individual offender and the magnitude of the risk, and the factors that would increase or alternatively decrease that risk.[90]
The above shows the problematic nature of risk assessment for individual offenders and the vexed question of measuring adequate protection of the community. In particular, it leaves at large complex issues such as assessing, predicting and balancing protection of the community, protection of the human rights of the offender and the prospects of rehabilitation and supervision. In particular, as discussed further below, risk assessment is fraught with difficulties.
Another key principle in the legislation is whether releasing an offender into the community under a supervision order could adequately protect the community.[91] There is no clear or settled explanation of what ‘adequate supervision’ means. In Attorney-General (NSW) v Hayter,[92] Hislop J referred to the ‘uncertainty’ as to the meaning of ‘adequate supervision’ with their being three major possibilities, although it was not necessary to determine in the instant case which should be preferred:[93]
(a) Bell J appeared to accept in Attorney-General (NSW) v Tillman[94] that adequate supervision means supervision adequate to eliminate, or at the very least, substantially reduce, the likelihood that the defendant will re-offend.[95]
In Attorney-General (NSW) v Winters,[96] McClellan CJ accepted that ‘adequate supervision’ was supervision that reduces the risk below either a high degree of likelihood of re-offending or making it less probable than not.
In Attorney General (NSW) v Cornwall, Hall J suggested that adequate meant it would reduce the risk of the defendant committing a further serious sex crime so that it is less likely than not that the person will reoffend in that regard.[97]
The Queensland Court of Appeal in Attorney-General (Qld) v Francis in relation to the Qld Act said that such arrangements did not have to be ‘watertight’ to be ‘adequate’ otherwise no such orders would be made. The Court said that
the question is whether the protection of the community is adequately ensured. If the supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release, should in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.[98]
C. The dynamics of risk assessment
An examination of the cases for each scheme shows that the Courts essentially rely on the reports and evidence of psychiatrists to assess the risk of re-offending. Psychiatrists tend to use actuarial scales to assess risk combined with clinical assessments. However, there are a number of serious doubts about the reliability of such evidence in assessing the risk of re-offending.
Scales for the prediction of further sexual offending are particularly hard to establish because of the low base rates of the outcome being measured and the dependence on re-conviction to measure outcome.
There are two main types of risk assessment, clinical and actuarial. The former involves an assessment by a clinician, usually a psychiatrist, of an individual’s history and mental state, while the latter scores the offender according to the presence of characteristics that are associated with a likelihood of re-offending derived from studies of populations of offenders.
The most commonly used actuarial instrument, the Static-99, is a 12-point scale that rates risk of further offending as low, moderate or high. The main criticism of actuarial instruments, particularly the Static-99, is their reliance on historical or ‘static’ factors that cannot change over time, and the high rates of false positives generated by scales in which even those found to be at high risk only have a 45% probability of any further offence of any kind within 10 years.[99] Other criticisms include their inability to distinguish between offenders who have very different patterns of behaviour and risk factors and their inability to distinguish between the prediction of sexual and other offences. Notwithstanding the persistently expressed doubts by experts in evidence about the validity of the Static-99 as a predictor of risk, it is consistently used by the courts to justify detention.
While a combination of actuarial and clinical approaches might produce more accurate results[100] there are still significant concerns about estimating risk and predicting behaviour. The fact remains that all current forms of assessment, whether based on actuarial or clinical findings will have an unacceptable false positive rate for almost all offenders and can not predict offences that may occur in previously unanticipated circumstances. The research undertaken thus far indicates that the false positive rate may be as high as two out of every three offenders who are assessed for their level of dangerousness.[101] Despite the inability of psychiatrists or any other behavioural scientist to accurately predict who will re-offend, the State schemes all include the requirement for psychiatric risk assessment.
Australian judges on a number of occasions have commented on the inherent difficulties in predicting the risk of re-offending. In Fardon, Kirby J said that ‘experts in law, psychology and criminology have long recognized the unreliability of predictions of criminal dangerousness’.[102] Kirby J referred to expert evidence that psychiatrists notoriously over-predict. His Honour suggested that predictions of dangerousness have been shown to only have a one-third to 50% success rate.[103] The Australian Law Reform Commission in its discussion paper, Sentencing of Federal Offenders also noted the widespread view that predictions of future criminality are inherently unreliable and more often than not result in erroneous predictions that an offender is likely to re-offend.[104]
A further problem with risk assessment in civil commitment laws is that mental health experts, particularly psychiatrists, are making judgments which are outside their area of expertise, that being the diagnosis and treatment of mental illness, as many of the subjects of civil commitment laws do not have any psychiatric diagnosis.[105] As Callaway JA put it in TSL v Secretary to the Department of Justice,[106]
As well as having difficulties with accuracy, predictions of risk may be seen as providing a veil of science over what is essentially a social and moral decision about the kind of offender who creates the greatest fear in the community. Asking mental health professionals to assess the risk of future harm shifts the burden of deciding what to do with such offenders from the community to clinicians whose primary role lies within the medical model of treatment, rather than with the criminal justice model of punishment and community protection.[107]
Moreover, judges and juries can misconstrue risk assessments that are put in figures and place greater reliance on their accuracy than is warranted.[108]
The classifications of risk may vary from low light, moderate or high or combinations of these categories such as ‘moderate to high’. These broad classifications can become even more complex and difficult to evaluate including assessments that a person might be at the ‘low end of a moderate risk’.[109]
These actuarial findings are usually not the equivalent of levels of risk used in the legislation such as ‘high degree of probability’ or ‘acceptable risk’. Thus inevitably some form of ‘conversion’ of these risk classifications into the risk levels used in the legislation is necessary by the courts.
There also can be almost a bewildering battery of psychological actuarial tests, which may use different types of classifications and factors and weightings and may lead to different conclusions. In Attorney-General for Queensland v Levack[110] the offender was tested according to the following array of tests with the following results: on a prison program, the Sexual Offenders Treatment Program (‘SOTP’) as having a ‘moderate to high risk of reoffending’; on the Static-99 one psychiatrist rated him in the ‘high risk’ category; on the Sex Offender Risk Category he was placed in category 5 which indicated a 45% risk of reoffending in 7 years and a 59% risk of reoffending at 10 years; on the Sexual Violence Risk Assessment he was ‘in the moderately high range of reoffending’; and he scored a ‘moderate risk’ on the Sex Offender Needs Assessment Rating (‘SONAR’) and the Sexual Violence Risk (‘SVR-20’) scales. The offender was also assessed as to his level of psychopathy according to the PCL-R, the and according to the psychopathy checklist developed by Robert Hare.[111] Another possible form of evaluation is Stable-2000, which is designed to act as a companion measure to the Static-99 and is used to assist in identifying stable criminogenic needs and treatment targets for sex offender programs.[112]
In Attorney-General for Queensland v Fisher[113] all three psychiatrists under cross-examination agreed that actuarial assessment tools were an ‘imprecise predictor of future behaviour’ but said that they also included personalized assessment of the risks.[114] While personalized assessments may be necessary to make any sense of the risk assessment task they make these judgments even more subjective and removed from any empirical basis.
Thus the task of risk assessment is made even more complex by the fact that psychiatrists will also on occasions rely on clinical assessments, ‘overall clinical judgments’[115] or ’dynamic assessments’[116] as well as the actuarial methods to take into account more subjective factors or the particular histories and presentations of the individual offender. Clinical assessment might include developmental, environmental, neurobiological and intrapsychic factors;[117] other common sense factors are likely to include attitudes to the offences and rehabilitation programs, level of social skills, literacy, work experience, family and peer support.[118] The evidence of psychiatrist can at best be professional rather than scientific.[119] Psychiatrists will then make assessments about sexual disorders, personality disorders, sociopathy and psychopathy which in themselves may be difficult or controversial.
These problems are compounded on occasions by the fact that reports relevant to risk may rely on unproven hearsay evidence.[120]
Another issue canvassed by the courts is that actuarial tests including the Static-99 have not been validated for use in relation to Australian indigenous people.[121]
A number of judges have commented on the problems of risk assessment including the lack of independent evidence indicating reliability.[122] Hislop J in Attorney-General for New South Wales v Hayter stated that Static-99 estimates did not directly correspond to the recidivism risk of an individual offender and that while it was a useful tool it had limitations.[123] Blaxell J in DPP v Allen[124] noted some of the limitations of Static 99 and stated that the method
[i]s not based upon any clinical examination but upon actuarial factors such as age, number of offences, number of appearances in court, characteristics of victims, and the like. The only one of these factors which can ever change is the offender’s age, and accordingly such an assessment will always remain the same regardless of the progress or lack of progress made in treatment.[125]
IX. THE COMPLEXITIES OF THE STANDARD OF PROOF
Civil commitment schemes are likely to create difficulties in developing a consistent approach to the standard of proof because the proceedings themselves are artificially hybrid. Their aim is to generally require a standard of proof lower than the criminal standard of beyond reasonable doubt but to require, on at least issues directly bearing on continuing detention, a standard higher than merely on the balance of probabilities because detention involves the loss of liberty.
The standard of proof guiding corrections personnel making decisions about whether to put an offender up for civil incarceration under the schemes, through to the judges making the final decision about risk, varies from State to State, from ‘a high probability’ down to tests that require a ‘likelihood’ or ‘reasonable satisfaction’.
There are in the schemes conflicting and confusing indicators about the standard of proof. In some instances courts have referred to Briginshaw v Briginshaw[126] about the sliding scale of proof without indicating exactly how Briginshaw should affect such civil commitment schemes.[127]
The schemes clearly have ambiguities in their provisions on the standard of proof. For example, section 40 of the Western Australia Act provides that proceedings under that Act are to be taken to be criminal proceedings for all purposes. This in isolation would seem to suggest that for all matters under the Act the onus will be on the State to prove beyond reasonable doubt. However, s 7 provides that before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The DPP has the onus of satisfying the court as described in subsection and the court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. The Western Australia Supreme Court has interpreted this provision to mean that the onus on the DPP in relation to this matter is not according to proof beyond reasonable doubt.[128]
Moreover, under s 14 of the Western Australia Act at a preliminary hearing, if the court is satisfied that there are reasonable grounds for believing that the court might, under section 7(1), find that the offender is a serious danger to the community, the proper officer of the court must fix a day for the hearing of the application for a Division 2 order for a continuing detention order. A number of WA cases have considered the issue of whether s 14 contemplates the use of a lower standard than beyond reasonable doubt. In Director of Public Prosecutions for Western Australia v Allen,[129] Blaxell J rejected the argument that the effect of s 40 when considered in the light of the principle that the general principles of statutory construction should favour a strict interpretation that affect personal liberty, must mean that s 14 had to be proven beyond reasonable doubt. Blaxell J instead held that s 14 was clearly only the first hurdle in the application of the legislation and was of a low threshold. This was borne out by the fact that the court could make a determination under s 14 entirely from a consideration of the documents filed and without the offender appearing or being heard. Furthermore the documents are permitted under s 13 to be based upon information and belief. Blaxell J held that such a low level of evidentiary requirements in relation to the preliminary inquiry was inconsistent with a strict requirement of proof beyond reasonable doubt. His Honour also said that the content of s 14 also indicated that the standard was a low one - the provision simply requires that a court be satisfied that are ‘reasonable grounds’ for ‘believing’ that an offender is a serious danger to the community. A similar view was expressed in Director of Public Prosecutions of Western Australia v Manning by Simmonds J.[130]
The situation is even more confusing in NSW. Under s 17(2) of the NSW Act an extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision. Under s 17(3) a continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.
The standard of proof as set forth under s 17 in NSW has caused confusion and ambiguity and is yet to be determined conclusively. Mason P in Tillman v Attorney-General for New South Wales[131] said that ‘likely’ was ‘chameleon like’ and that the provisions really required the Court to address ‘a cascading set of predictions’ and noted that the legislation was ‘opaque’.[132] Giles and Ipp JJA said in Tillman that ‘likely’ in s 17(3) denotes a high degree of probability, but not necessarily involving a degree of probability in excess of 50%; that is, such likelihood need not be more probable than not.[133] However, Mason P in Tillman said that the term ‘likely’ should be given the meaning of ‘more probable than not’. The meaning of the words was made more complex not only by other attempts at defining likelihood and probability but also because the common law’s presumption in favour of the liberty of the subject should mean that a tighter more difficult standard of proof should be adopted if there is an ambiguity. Moreover, it was clear that the civil standard could vary according to the gravity of the fact to be proved.[134]
Winters v Attorney-General of New South Wales,[135] the most recent case on the issue before the NSW Court of Appeal, has not resolved the uncertainties. Mason P in Winters referred to the divided court in Tillman[136] on the meaning of ‘satisfied to a high degree of probability’ and supported the majority view in that case which was that ‘likely’ under s 17(2) and (3) described a ‘probability at the upper end of the scale’ but did not require that re-offending be ‘more probable than not’.[137] Giles JA also referred to the different possible standards that might be required under s 17 including elimination of the likelihood of re-offending; substantial reduction of the likelihood of re-offending; or reduction of the likelihood of re-offending below the degree of probability at the upper end of the scale.[138] His Honour said that the Court of Appeal in Winters did not need to provide a definitive answer because the trial judge in Winters had found that adequate supervision could not be provided whatever be the relevant standard.[139]
X. THE DUTIES OF GOVERNMENT TO PROVIDE REASONABLE RESOURCES FOR REHABILITATION
A number of cases have discussed what duties, if any, government has to provide rehabilitative resources to allow for a lower level of control or detention under the civil commitment schemes. One important issue is whether a failure by government to provide resources which if provided would mean that detention is unnecessary may result in a court refusing an application for continuing detention or the alternative of supervised release, for example, on grounds such as that the defendant could be safely managed in the community under a program, but none exists. Cases in Queensland and Western Australia have suggested that the courts could establish such duties on government.
In Director of Public Prosecutions for Western Australia v Williams,[140] McKechnie J refused an order sought by the DPP for the continuing detention of the offender or for supervision on the basis that he was a serious danger to the community. McKechnie J stated that the proceedings were adversarial and that it was the applicant DPP which had to establish its case for an appropriate order.[141]
McKechnie J said that he was
far from satisfied to a high degree of probability that the use of STATIC-99 is a sufficient predictor of the propensity to commit serious sex offences in the future so as to discharge the onus under the Dangerous Sexual Offenders Act s 72.[142]
McKechnie J noted the lack of planning and suitable post prison sex offending courses, substance abuse programs and mentoring available for the offender.[143]
McKechnie J also stated that the civil commitment schemes should be regarded as exceptional cases.[144] His Honour then said,
It may be that an intensive form of treatment and counselling to reduce the risk to the community will fail in the respondent’s case because he is unable or unwilling to fully participate. However, so far nothing has been seriously tried or proposed that would give any prospect that he would be fit one day to return to the community. It is an inadequate response by the Corrective Services Department to cite lack of resources and that resources would be assigned only if they were court ordered. If it was an adequate response then the community would be complicit in indefinite preventative detention, without prospect of release is anathema to modern Australian society.[145]
McKechnie J said that the evidence in the case neither established that a supervision program was appropriate or inappropriate. McKechnie J said that at least partly because of lack of resources that the Department of Corrective Services had made ‘no worthwhile effort at all to investigate the possibility of a supervision order within the community.’[146]
Moreover, on appeal to the Western Australian Court of Appeal, Wheeler JA did not appear to resile from the argument developed by McKechnie J that the Government or executive had some responsibility to ensure that appropriate resources were available for rehabilitation programs. Her Honour stated:
The Act provides in s 4 that its objects are, inter alia to provide for the continuing ‘control, care or treatment’ of persons of a particular class. If those persons require control, care or treatment in order to protect the community, the court can assume that, if an order is made, the executive will perform its function of protecting the community by the provision of appropriate assessment and resources. There is an analogy with the making of orders such as intensive supervision orders to which offenders may be sentenced. Those orders may require offenders to undergo certain forms of assessment or programs. Since parliament has made provision for them the court must assume that they will be available.[147]
In a more recent decision concerning Mr Fardon, the Queensland Attorney General, appealed to the Court of Appeal against an order from the trial judge that Mr Fardon be released from continuing detention and released into the community subject to supervision.[148] One of the grounds of appeal was that the trial judge erred in concluding that the offender’s graduated release into the community, which all three psychiatrists had considered to be the most appropriate option, was not an available option under the Queensland prison system. The Court of Appeal rejected this argument and reiterated the Court of Appeal’s decision in Attorney General for Queensland v Francis[149] namely a fundamental principle was, whether a supervision order is apt to ensure adequate community protection; if so, this should be preferred to a continuing detention order because the Act's intrusions on the liberty of the subject are exceptional and should be permitted to no greater extent than clearly authorized by the Act.[150]
The Court of Appeal after reviewing the evidence stated that it was now clear that Corrective Services were unable, or unwilling, to provide the gradual release procedure recommended by all examining psychiatrists. The Court determined that the time had come to refuse to make a detention order, particularly given the observations to approve his release on the conditions proposed by the learned judge at first instance.[151] The continued failure of the executive to arrange for the graduated release even when on notice of its importance as an option was a factor in determining that further detention could not be allowed.
The Court of Appeal stated that legislation providing for the detention of a person after the expiration of sentence was under the Australian justice system a drastic step and if particular treatment was likely to prove beneficial to enable or prepare a prisoner for release into the community it was concerning that this is not facilitated by the executive or the legislature.[152]
A. Contrasting position in NSW
In Winters v Attorney-General for New South Wales before the NSW Court of Appeal, one of the grounds of appeal was that the trial judge had erred by having regard to or giving too much weight to Government policy that indicated that the offender would not be given funds for one on one treatment by a psychologist.[153] The trial judge had stated that the absence of funding for the necessary counselling was a significant factor in his not being satisfied that adequate supervision could be provided for by an extended supervision order and hence the offender had to remain in detention.[154] The evidence was clear that the government would not provide such funding and it was also accepted by the trial judge (and the Court of Appeal) that such counselling would have been likely to reduce the risk of re-offending to the requisite degree to enable the offender to be given supervised release.[155] There was evidence that the Department of Corrective Services was unwilling to divert scarce resources to one on one treatment because of the limited data suggesting it was beneficial.[156]
Each of the three judges of the NSW Court of Appeal rejected the ground of appeal, stating that the failure of the government to provide services did not constitute an abuse of process and nor did it justify the Court refusing to exercise its discretion to refuse to make any order.[157]
The reasons for this view were based on a narrow statutory construction of the provisions to the effect that there was no explicit power for the Court to require the State to provide for any funding. The relevant provision s 11(d) of the Act simply referred to the Supreme Court directing an offender to ‘participate in treatment and rehabilitation programs’.[158] The Court also considered that a failure by the government to provide funds was not unreasonable because, for example, there was nothing to suggest that it was arrived at in aid of keeping offenders such as the offender in custody pursuant to continuing detention orders.[159] However, Hodgson JA stated that
the Court has a discretion to decline to make any order; and this discretion could perhaps be exercised if the Court considered to be sufficiently unreasonable a failure by the executive to make provision which would give effect to appropriate conditions of a supervision order.[160]
It is submitted that there are a number of strong legal, moral and practical reasons for the Court of Appeal to have determined otherwise.
First, the Court could have adopted the general approach taken by Courts in Western Australia and Queensland and recognized that such civil commitment schemes should be regarded as ‘exceptional’,[161] meaning that great caution should be exercised before imposing orders under such legislation - a clear and convincing case is necessary. Other judges including NSW judges have also commented on the exceptional and drastic consequences of such legislation. Bell J in Tillman noted that ‘a person subject to an extended supervision order is a prisoner in all but name’.[162] It is submitted that such an approach is also consistent with earlier High Court decisions including Kable v Director of Public Prosecutions of New South Wales[163] and also Chester v The Queen.[164] In Chester the High Court referred to the civil detention scheme provided for under s 662 of the Criminal Code (WA) as an ‘extraordinary power’[165] and stated
After all it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Veen v The Queen (No. 1) [1979] HCA 7; (1979) 143 CLR 458, at pp 467, 468, 482-483, 495; Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, at pp 472-474, 485-486. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s.662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm.[166]
These above cases referred to matters of general principle and the writers would argue that it is incorrect to try to limit their general utility by attempting to distinguish various schemes or particular provisions of such schemes, a methodology used by the NSW Court of Appeal in Winters, particularly when these cases make no suggestion that the general principles and comments are to be confined to the particular circumstances of the case.[167] It should also be borne in mind that rehabilitation is a key element of the three schemes and is specifically mentioned as an objective in the NSW Act.[168]
Hodgson PA stated that decisions about how to allocate resources for the rehabilitation of offenders and the protection of the community are decisions for Parliament and or the Executive and not the courts.[169] This is clearly in principle correct but the circumstances in civil commitment schemes are exceptional. Under such legislation offenders face the prospect of further detention according to principles and processes that deviate significantly from the application of normal criminal law principles. The onus of proving the need for orders under such legislation must rest with the Crown and the principle of the liberty of the individual must be used to determine the lowest level of detention. If the Crown advocates for continuing detention then it ought to be under at least a prima facie obligation to provide reasonable funds for rehabilitation services that could be said to be reasonably available. It is the Crown which brings the action and which should bear the responsibility of reasonable rehabilitation services. If it does not, then it is using extraordinary powers without any corresponding duty to ensure that offenders are given at least a reasonable opportunity to avail themselves of options to avoid continuing detention.
Hodgson PA suggests that imposing a duty on the Executive to provide some funding would mean that ‘the Court would be able to formulate any such program as it chooses, and to assume irrebuttably that the executive would provide such a program’.[170] In the writers’ view, that is a distortion of what the duty might involve. First, applications under the schemes are made by the Crown and the process is adversarial. It would be for the parties to raise and interrogate each other as to any forms of rehabilitation that might be appropriate. In the course of that process the availability and effectiveness of such options would be canvassed. The Court would not be in a position of its own motion to raise and investigate different rehabilitation options. Secondly, as in Winters the court would need to be satisfied by the evidence that the suggested rehabilitation service or program would have a significant effect on the order to be made. Thirdly, the court’s discretion could be limited to considering whether the Government had acted reasonably in the circumstances of the particular case to provide funding for appropriate services that would be significant in the order to be made. The court’s scrutiny of Government policy would not be at large but instead confined as suggested. The court would not be determining government funding or policy but instead in a particular case deciding whether the Crown had not met its obligations under the legislation to prove that continuing detention was the order necessary to meet the objectives of community protection and rehabilitation of the offender.
Another principle supporting the development of a government duty is that in interpreting such schemes any ambiguity should be construed in favour of the liberty of the individual. The Queensland Court of Appeal in the decision of Attorney-General for Queensland v Francis stated:
The intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorises such constraint.[171]
Thus in Winters it was not clear on the face of the statute whether the government had or had no duty to provide reasonable or adequate funding so in those circumstances the ambiguity should have been resolved in favour of Mr Winters particularly given that the burden of proof in relation to all matters under such a scheme should lie with the Crown.
Moreover, there is even more direct High Court authority to suggest that Government does have duties in relation to providing adequate rehabilitation and treatment under such civil commitment schemes for sex offenders.
Gummow J in Fardon v Attorney-General for Queensland stated that an executive government repudiation of the preventive objects of the Queensland Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all.[172] This view of Gummow J was discussed with approval by the Queensland Court of Appeal in Attorney General for Queensland v Francis.[173]
The Queensland Court of Appeal stated that if it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive and not punitive.[174]
In addition, McClellan CJ in dealing with Winters at trial level stated that
Where a person has not been treated but is contemplated as suitable for release under supervision, counselling will almost certainly be a condition of release. Ongoing counselling is provided by the State when treated prisoners are released to parole. The evidence before me is that it has been provided to untreated prisoners after release, but who were released before the legislation came into force. If, as was suggested in this case, such counselling is not to be offered by the State or funded by government the consequence may be that few, if any, untreated high risk offenders could ever be released under a supervision order. This would be an inhumane consequence of legislation intended for the rehabilitation of the offender and the safety of the community. Similar problems have been identified and commented on in Western Australia: see Director of Public Prosecutions for Western Australia v Williams [2007] WASC especially at [53] and [55].[175]
Besides this authority, there is a strong case to argue that the government failure to fund was deliberately and clearly discriminatory. The government was aware or should have been aware that without a commitment by it to fund the counselling that the offender was almost certain to have continuing detention imposed. Mr Winters had no personal means to fund the counselling and Medicare did not extend to it. The decision by the Government discriminated personally against Mr Winters and potentially to all offenders who lack access to means to pay for such rehabilitative programs. Moreover, as Mason P noted, there was some evidence that two other serious sex offenders had been deemed worthy to receive such treatment while Mr Winters had not with no explanation proffered for this discrepancy.[176]
Nor was the government decision not to fund reasonable or rational. There are limitations to the utility of detention that ought to be recognised and taken into account as indicated by a number of judges. McKechnie J in Director of Public Prosecutions for Western Australia v Wozencroft[177] commented that in the end the community was better served by supervision orders within the community than continuing detention because unless people are detained forever, eventually they must return to the community and the best way for them to do so is with considerable resources allocated to assist them so as to protect the community from further re-offending.[178] Murray J in Alvisse said that the WA legislation provides ‘extraordinary powers’ and that any order under such legislation should not positively impede the rehabilitation of the offender, saying that a properly balanced sentence, which provides an incentive for rehabilitation, provides the best guarantee against further offending.[179]
Similar views have been expressed in Queensland. In Attorney-General for Queensland v Murry,[180] Chesterman J noted that as that date 28 May 2007 there had been 23 supervision orders made in Queensland instead of continuing detention and of those 23 all but four had complied with the terms of the order. Of those four who had contravened their orders, there was no evidence that they had committed a sexual offence subsequent to release. Chesterman J commented that these figures indicated that supervision could assist to prevent recidivism.[181]
Moreover, in practical terms the costs of providing the funding for counselling would have been considerably less than the costs involved in keeping Mr Winters in detention. The latter is highly expensive. For example, the estimated cost of maximum–security imprisonment in Australia was approximately $80 000 per prisoner per year as at 1990, which given the effluxion of time and increases in inflation must now be a much higher figure.[182] The Courts have also made orders for electronic bracelets for tracking pursuant to Crown submissions which are also very expensive systems and also of very dubious benefit.[183] A request for one-to-one counselling was not an outlandish, novel or unreasonable option – it is an orthodox part of treatment of sexual offenders recognised around the world.
The proffered reason by the Government of its failure to provide resources for the counselling is also dubious. First, it has to be remembered that the schemes were designed or intended to be used for only a small group of ‘hard core offenders’ and thus costs for their rehabilitation should not be excessive.[184] Secondly, there is little evidence that group counselling or treatment in prison is any more effective than one on one counselling in the community. In the case of Winters there was uncontroverted evidence that one on one counselling would be sufficient to reduce the risk to acceptable levels. In fact, as noted above, there are serious misgivings about the effectiveness of prison schemes such as CUBIT particularly in catering for the individual needs of different offenders.
The interpretation thus far of the civil commitment schemes by State courts shows the range of contentious issues that they raise. This is not surprising because of the artificial, hybrid nature of the schemes that uncomfortably straddle civil and criminal processes and consequences. The laws are neither ‘fish nor fowl’. The fundamental aspects of these schemes are at best problematic if not highly dubious. Whilst it is true that the courts have on the whole made orders under the legislation and accepted the basic parameters of the risk assessment, often cautiously and occasionally grudgingly, there are areas of unease and continuing ambiguity and uncertainty. Various courts and various judges have commented on the limitations of risk assessment and the lack of certainty associated with the key terms of the legislation. Moreover, there is no clear or settled approach to key terms in the legislation such as ‘serious risk’, ‘high probability’, ‘likely’, ‘adequate supervision’ or ‘unacceptable risk’ which form the foundations of the schemes but which are inherently problematic. The courts, perhaps understandably, have shied away from attempting to provide any clear guidelines as to the meaning and effect of these terms.
In addition, the courts and individual judges have commented on current inadequacies of rehabilitation services and programs both within prison and in the community. Courts and judges have also regularly commented on the lack of coordination and planning in dealing with serious sex offenders under the legislation. These comments provide a snapshot of a poorly planned, co-ordinated and resourced system across all three jurisdictions. Rehabilitation is expressed as a central objective of the schemes but in practice it is a poor cousin to more punitive measures. Yet it would be the establishment of an effective system of rehabilitation that would be most likely to offer the best protection against re-offending - a view which has been supported by a number of judges in interpreting the schemes as described above. Punitive measures may be counterproductive by actually exacerbating the risk of re-offending by maintaining offenders in detention or by hardening their attitudes within the community. Generally speaking, the experience of imprisonment is ‘negative and destructive’ for the offender and being in prison for a considerable number of individuals may develop, reinforce or exacerbate criminality.[185] The effect of punishment is complex and in some situations may either suppress or stimulate aggressive or antisocial behaviour.[186] The Australian National Committee on Violence commented that it suspected that prisons fail to reduce the propensity to violence of many offenders.[187]
In addition, there is the controversial area of the responsibility of government in relation to the provision of reasonable and adequate rehabilitation services which can be seen as a form of reciprocity of responsibility if government wishes to use such exceptional and drastic legislation. The Queensland and Western Australian courts have shown a willingness to develop a concept of imposing some duties or responsibilities on government under the schemes to provide such resources if the government wishes to impose orders under this legislation. In the writers’ view, for the reasons expressed above, the NSW Court of Appeal has regrettably declined in Winters to follow the same line of reasoning.
The analysis of judicial interpretations of the operation of the civil commitment laws demonstrates that they are in many ways a blunt instrument that focuses on punishment at the expense of prevention, early intervention, treatment, rehabilitation and reintegration into the community. They rely on guesswork, albeit educated or informed guesswork, that has a clearly unreliable foundation, rather than operate on any firm empirical base.
Moreover, what these laws might be able to achieve on risk reduction is out-weighed by the damage that they do to the tradition and integrity of our legal and medical systems and to the human rights of offenders. What is needed is the repeal of these laws and substituted in their place an integrated and planned response to sex offences that focuses on prevention, early detection, proportionate sentencing of offenders and a comprehensive, well resourced and integrated management and treatment system both within prison and in the community.
[*] BA LLB, LLM (Hons), Lecturer, University of Western Sydney Law School, Campbelltown.
[†] LLB PhD, Associate Professor, University of Western Sydney Law School, Campbelltown. We gratefully acknowledge the assistance of Clarence Brown of the Mental Health Research and Training Centre.
[1] See generally K Diesfeld & I Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International perspectives on Civil Commitment (2003).
[2] For example, quarantine detention for reasons of public health: see Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 633 (Kirby J).
[3] More controversially, inebriates and habitual criminals have also been in some jurisdictions subject to civil detention: see Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 585-586 (Gleeson CJ); B McSherry, ‘Sex, Drugs and Evil Souls: The Growing Reliance on Preventive Detention Regimes’ [2006] MonashULawRw 12; (2006) 32(2) Monash University Law Review 237.
[4] K Warner, ‘Sentencing Review 2002-2003’ (2003) 27(6) Criminal Law Journal 325.
[5] For example, see B McSherry, P Keyzer and A Freiberg, Preventive Detention for Dangerous Offenders in Australia: A Critical Analysis and Proposals for Policy Development Report to the Criminology Research Council (2006); P Keyzer and S Blay, ‘Double Punishment? Preventive Detention Schemes Under Australian Legislation and Their Consistency with International Law; The Fardon Communication’ [2006] MelbJlIntLaw 16; (2006) 7 Melbourne. Journal of International Law 407; B McSherry, ‘Indefinite and Preventive Detention Legislation: From Caution to an Open Door’ (2005) 29(2) Criminal Law Journal 94; A Gray, ‘Detaining Future Dangerous Offenders: Dangerous Law’ (2004) 9 Deakin Law Review 243; A Gray, ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict On Preventive Detention Laws’ [2005] DeakinLawRw 9; (2005) 10 Deakin Law Review 177.
[6] [2004] HCA 46; (2004) 223 CLR 575 (‘Fardon’).
[7] Keyzer and Blay, above n 5; Gray above n 5; Gray above n 5.
[8] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 3; Dangerous Sexual Offenders Act 2006 (WA) s 4.
[9] In the United States, at least 15 American states have civil commitment laws for serious sexual offenders and the numbers of offenders to whom these laws have been applied are very high, perhaps amounting to several thousands for the nation as a whole. See E Janus, Failure to protect: America’s Sexual Predator Laws and the Rise of the Preventive State (2006).
[10] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Schedule to the Act.
[11] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 6(1).
[12] Dangerous Sexual Offenders Act 2006 (WA) s 8(1).
[13] Dangerous Sexual Offenders Act 2006 (WA); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Crimes (Serious Sex Offenders) Act 2006 (NSW).
[14] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 5; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 6; Dangerous Sexual Offenders Act 2006 (WA) ss 6(1) and 8.
[15] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13.
[16] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(2), (3).
[17] Dangerous Sexual Offenders Act 2006 (WA) s 7.
[18] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 14; Dangerous Sexual Offenders Act 2006 (WA) s 25; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 18(1).
[19] Dangerous Sexual Offenders Act 2006 (WA) pt 3; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) pt 3; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 19.
[20] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) pt 4; Crimes (Serious Sex Offenders) Act 2006 (NSW) s 22; Dangerous Sexual Offenders Act 2006 (WA) pt 4.
[21] Crimes (Serious Sex Offenders) Act 2006 (NSW) pt 2 (Extended Supervision Orders); Dangerous Sexual Offenders Act 2006 (WA) s 17, 18; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13.
[22] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17; Dangerous Sexual Offenders Act 2006 (WA) s 17; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13.
[23] See, eg, A-G (Qld) v Bridson [2007] QSC 307 (Unreported, White J, 26 October 2007) [5]; see also A-G (Qld) v Fardon [2005] QSC 137 (Unreported, Moynihan J, 11 May 2005) [22].
[24] See, eg, A-G (Qld) v Fardon [2007] QSC 299 (Unreported, Wilson J, 19 October 2007) [3].
[25] The writers considered over 60 cases concerning the three schemes.
[26] See, eg, DPP (WA) v Williams [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007), although note on appeal that the trial judge was held to be in error in applying principles to the particular case without adjourning the case to enable evidence to be led which would have allowed the court to determine what sort of order would have been appropriate DPP v Williams [2007] WASCA 206; (2007) 35 WAR 297; DPP (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379.
[27] See DPP (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379, 382 (Hasluck J) in which it was said the Courts’ powers under such schemes might appear to be more of the nature of administrative decision making than their traditional functions.
[28] [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007) [34], [36].
[29] For examples of cases where Departmental officers gave evidence see A-G (Qld) v HTR [2007] QSC 19 (Unreported, Lyons J, 9 February 2007); A-G v Jamieson [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007); and A-G (Qld) v Fardon [2006] QSC 336 (Unreported, Lyons J, 8 November 2006).
[30] [2003] QSC 367 (Unreported, Muir J, 31 October 2003) [35]-[36].
[31] Ibid.
[32] [2003] QSC 377; (2003) 143 A Crim R 312, 316.
[33] [2004] QSC 128 (Unreported, Mackenzie J, 5 May 2004), [14]-[18].
[34] [2003] QSC 367 (Unreported, Muir J, 31 October 2003).
[35] [2003] QSC 377; (2003) 143 A Crim R 312.
[36] [2006] QSC 45 (Unreported, Mackenzie J, 14 March 2006) [5].
[37] See, eg, A-G (Qld) v Shapland [2007] QSC 344 (Unreported, Byrne J, 5 November 2007) [11]; See also A-G (Qld) v Beattie [2007] QCA 96 (Unreported, Keane and Holmes JJA and Douglas J, 30 March 2007) [31]-[32]; A-G (Qld) v Fardon [2003] QSC 200 (Unreported, Muir J, 9 July 2003) [68]-[69].
[38] See, eg, A-G (Qld) v W [2004] QSC 262; (2004) 148 A Crim R 393, 394; A-G (Qld) v McLean [2006] QSC 137 (Unreported, Dutney J, 17 May 2006) [8].
[39] See, eg, A-G v Jamieson [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007) [34]; A-G (Qld) v Twigge [2006] QSC 107 (Unreported, Mullins J, 17 May 2006) [14].
[40] [2007] NSWSC 1082 (Unreported, Hall J, 28 September 2007) [81]-[82].
[41] [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007)
[42] Ibid [21].
[43] See, eg, A-G v Spence [2007] QSC 218 (Unreported, Mullins J, 20 August 2007).
[44] DPP (WA) v Williams [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007).
[45] See, eg, A-G (Qld) v Waghorn [2006] QSC 171; (2006) 163 A Crim R 218, 224.
[46] See, eg, A-G (Qld) v HTR [2007] QSC 19 (Unreported, Lyons J, 9 February 2007) [41].
[47] See, eg, A-G (Qld) v LSS [2007] QSC 202 (Unreported, Philippides, 6 August 2007) [31].
[48] See, eg, A-G (NSW) v Tillman [2007] NSWSC 605 (Unreported, Bell J, 18 June 2007) [127].
[49] Ibid [24].
[50] A-G (Qld) v McLean [2006] QSC 137 (Unreported, Dutney J, 17 May 2006) [8].
[51] A-G (NSW) v Quinn [2007] NSWSC 873 (Unreported, Hall J, 10 August 2007) [169].
[52] Lee v State Parole Authority of New South Wales [2006] NSWSC 1225 (Unreported, Johnson J, 17 November 2006) [77].
[53] Ibid [144]-[146].
[54] A-G (NSW) v Hayter [2007] NSWSC 1146 (Unreported, Hislop J, 16 October 2007) [17].
[55] A-G (NSW) v Tillman [2007] NSWSC 605 (Unreported, Bell J, 18 June 2007) [122]-[124], [126].
[56] Ibid [126]; A-G (NSW) v Quinn [2007] NSWSC 873 (Unreported, Hall J, 10 August 2007) [133].
[57] A-G (Qld) v Bridson [2007] QSC 307 (Unreported, White J, 26 October 2007) [57].
[58] A-G v Jamieson [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007) [36].
[59] See, eg, A-G (Qld) v Francis [2007] QSC 328 (Unreported, Philippides J, 7 November 2007) [32] where an offender was placed in an environment with easy access to drugs and no money; see also A-G (NSW) v Wilde [2008] NSWSC 14 (Unreported, Price J, 24 January 2008) [6].
[60] A-G (Qld) v Fardon [2005] QSC 137 (Unreported, Moynihan J, 11 May 2005) [49].
[61] Western Australia v Alvisse [2007] WASC 129 (Unreported, Murray J, 20 June 2007).
[62] Ibid [33]-[34].
[63] See, eg, A-G v Jamieson [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007) [34].
[64] [2005] QSC 314 (Unreported, Atkinson J, 16 August 2005).
[65] [2006] QSC 328 (Unreported, Lyons J, 1 November 2006).
[66] A-G (Qld) v Toms [2007] QSC 290; (2007) 176 A Crim R 401.
[67] Ibid 403.
[68] Ibid 405.
[69] DPP (WA) v Williams [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007) [44].
[70] See, eg, DPP (WA) v Williams [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007).
[71] Ibid [49].
[72] See, eg, A-G v Hansen [2006] QSC 35 (Unreported, Mackenzie J, 6 March 2006) [29].
[73] A-G (Qld) v Van Dessel [2006] QSC 16 (Unreported, White J, 10 February 2006) [56].
[74] A-G (Qld) v Francis [2007] QSC 328 (Unreported, Philippides J, 7 November 2007) [28].
[75] A-G (NSW) v Quinn [2007] NSWSC 873 (Unreported, Hall J, 10 August 2007).
[76] [2005] QSC 381; (2005) 158 A Crim R 399, 408, 429-430.
[77] A-G (NSW) v Quinn [2007] NSWSC 873 (Unreported, Hall J, 10 August 2007) [173]-[178].
[78] Ibid [178].
[79] See, eg, A-G (Qld) v Bridson [2007] QSC 307 (Unreported, White J, 26 October 2007) [51].
[80] See, eg, A-G (Qld) v Francis [2007] QSC 328 (Unreported, Philippides J, 7 November 2007) [25].
[81] Dangerous Sexual Offenders Act 2006 (WA) s 7; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13.
[82] Dangerous Sexual Offenders Act 2006 (WA) s 7; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13.
[83] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(2) and (3).
[84] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(4); Crimes (Serious Sex Offenders) Act 2006 (NSW) s 9(3); Dangerous Sexual Offenders Act 2006 (WA) s 7(3).
[85] Dangerous Sexual Offenders Act 2006 (WA) s 7; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(2).
[86] Western Australia v Alvisse [2007] WASC 129 (Unreported, Murray J, 20 June 2007) [26]; see also Western Australia v Latimer [2006] WASC 235 (Unreported, Murray J, 30 October 2006).
[87] Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 593.
[88] Ibid.
[89] [2007] WASC 134 (Unreported, Simmonds J, 21 June 2007)
[90] Ibid [112]-[113].
[91] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(3) refers to the Supreme Court being only able to make a detention order if adequate supervision will not be provided by an extended supervision order; also see Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 30 and Dangerous Sexual Offenders Act 2006 (WA) s 17.
[92] [2007] NSWSC 1146 (Unreported, Hislop J, 16 October 2007).
[93] Ibid [62].
[94] [2007] NSWSC 605 (Unreported, Bell J, 18 June 2007).
[95] Ibid [17].
[96] [2007] NSWSC 1071; (2007) 176 A Crim R 249 (‘Winters’).
[97] [2007] NSWSC 1082 (Unreported, Hall J, 28 September 2007) [139].
[98] [2006] QCA 324; [2007] 1 Qd R 396.
[99] A-G (NSW) v Wilde [2007] NSWSC 1490 (Unreported, Price J, 20 December 2007) [62].
[100] For example, see R Hanson, ‘Who is dangerous and when are they safe? Risk assessment with sex offenders in B Winick & J Fond (eds) Protecting Society from sexually dangerous offenders - law, justice and therapy (2003) 67.
[101] S Brody and R Tarling, Taking Offenders Out of Circulation, Home Office Research Study No 64 London HMSO 1981; J Monahan, Predicting Violent Behaviour, (1981); A Bottoms and R Brownsword, ‘The Dangerousness Debate After the Floud Report’ (1982) 22 British Journal of Criminology 229; R Gordon ‘Preventive Sentencing and the Dangerous Offender’ (1982) British Journal of Criminology 285; N Morris and M Miller ‘Predictions of Dangerousness’ in N Morris and M Tonry (eds) Crime and Justice: A Review of Research Vol 10 (1986); D Wood ‘Dangerous Offenders and the Morality of Protective Sentencing’ (1988) Criminal Law Review 424; A Von Hirsch & A Ashworth ‘Protective Sentencing under s2(2) (b): the Criteria For Dangerousness’ (1996) Criminal Law Review 175; P Mullen ‘Dangerousness, risk and the prediction of probability’ in M Gelder, JJ Lopez-Ibor & N Andressen (eds) New Oxford Textbook of Psychiatry (2001), 2066-2119; A McAlinden, The Shaming of Sexual Offenders: Risk, Retribution and Reintegration (2007) 112-113.
[102] Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575.
[103] A Gray ‘Standard of Proof, Unpredictable Behaviour and the High Court of Australia’s Verdict on Preventive Detention Laws’ 10(1) Deakin Law Review 177.
[104] Australian Law Reform Commission, Sentencing of Federal Offenders, Discussion Paper No 70 (2005) [4.17].
[105] D Ruschena, ‘Determining Dangerousness: Whatever Happened to the Rules of Evidence?’ (2003) 10(1) Psychiatry, Psychology and Law 122.
[106] [2006] VSCA 199; (2006) 14 VR 109
[107] Ibid, (quoted by Hasluck J in DPP (WA) v Mangolarama [2007] WASC 71; (2007) 169 A Crim R 379, 385).
[108] D Ruschena ‘Determining dangerousness: whatever happened to the rule of justice? (2003) 10(1) Psychiatry, Psychology and Law 122; B Johnson ‘Prophecy with numbers’ [2005] UTSLawRw 6; (2005) 7 University of Technology, Sydney Law Review 117; B McSherry, P Keyzer, A Freiberg, Preventive Detention for Dangerous Offenders in Australia; A Critical Analysis and Proposals for Policy Development, Report to the Criminology Research Council, December 2006.
[109] A-G (Qld) v HTR [2007] QSC 19 (Unreported, Lyons J, 9 February 2007) [45].
[110] [2007] QSC 275 (Unreported, Daubney J, 4 October 2007).
[111] Ibid [74]; for a similar range of tests see also A-G (Qld) v HTR [2007] QSC 19 (Unreported, Lyons J, 9 February 2007) [42]; see also A-G (Qld) v Bridson [2007] QSC 307 (Unreported, White J, 26 October 2007) [49].
[112] A-G (Qld) v LSS [2007] QSC 202 (Unreported, Philippides J, 6 August 2007) [15].
[113] A-G (Qld) v Fisher [2007] QSC 341 (Unreported, Mackenzie J, 22 November 2007).
[114] Ibid [14]-[16].
[115] See, eg, A-G (Qld) v Toms [2006] QSC 298 (Unreported, Chesterman J, 20 October 2006) [16].
[116] See, eg, A-G (Qld) v Levack [2007] QSC 275 (Unreported, Daubney J, 4 October 2007) [84].
[117] See, eg, A-G v Fisher [2007] QSC 341 (Unreported, Mackenzie J, 22 November 2007) [15].
[118] Ibid 23.
[119] A-G (NSW) v Tillman [2007] NSWSC 605 (Unreported, Bell J, 18 June 2007) [72].
[120] See, eg, comments of Muir J in A-G v Watego [2003] QSC 367 (Unreported, Muir J, 31 October 2003) [30].
[121] See, eg, DPP v Manning [2007] WASC 134 (Unreported, Simmonds J, 21 June 2007) [103]; A-G (Qld) v McLean [2006] QSC 137 (Unreported. Dutney J, 17 May 2006) [94].
[122] DPP (WA) v Mangolarama [2007] WASC 71; (2007) 169 A Crim R 379, 406.
[123] A-G (NSW) v Hayter [2007] NSWSC 1146 (Unreported, Hislop J, 16 October 2007) [35]; see also DPP (WA) v Williams [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007) [34].
[124] DPP v Allen [2006] WASC 160 (Unreported, Blaxell J, 4 August 2006) [33].
[125] Ibid.
[126] [1938] HCA 34; (1938) 60 CLR 336, 362.
[127] See, eg, A-G (Qld) v HTR [2007] QSC 19 (Unreported, Lyons J, 9 February 2007) [54]; also see A-G (NSW) v Jamieson [2007] NSWSC 465 (Unreported, Hidden J, 11 May 2007) [31].
[128] See, eg, A-G (WA) v Alvisse [2007] WASC 129 (Unreported, Murray J, 20 June 2007), [5]–[6].
[129] DPP (WA) v Paul Douglas Allen Also Known As Paul Alan Francis Deverell [2006] WASC 160 [Unreported, Blaxell J, 4 August 2006] [38]-[46].
[130] DPP (WA) v Manning [2007] WASC 134 (Unreported, Simmonds J, 21 June 2007) [61]–[64].
[131] Tillman v A-G (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448
[132] Ibid 450-451.
[133] Ibid 461-462.
[134] Ibid 451; also see Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521 (Barwick CJ, Kitto, Menzies and Windeyer JJ).
[135] [2008] NSWCA 33 (Unreported, Mason P, Giles JA and Hodgson JA, 18 March 2008).
[136] Tillman v A-G (NSW) [2007] NSWCA 327; (2007) 70 NSWLR 448.
[137] Winters v A-G (NSW) [2008] NSWCA 33 (Unreported, Mason P, Giles JA and Hodgson JA, 18 March 2008) [2] (Mason P).
[138] Ibid [41]-[47] (Giles JA).
[139] Ibid [46] (Giles JA).
[140] [2007] WASC 95 (Unreported, McKechnie J, 26 April 2007).
[141] Ibid [4].
[142] Ibid [36].
[143] Ibid [53].
[144] Ibid.
[145] Ibid.
[146] Ibid [55].
[147] DPP (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297, 316.
[148] A-G (Qld) v Fardon [2006] QCA 512 (Unreported, McMurdo P, Williams JA and White J, 4 December 2006).
[149] [2006] QCA 324; [2007] 1 Qd R 396, 405.
[150] A-G (Qld) v Fardon [2006] QCA 512 (Unreported, McMurdo P, Williams JA and White J, 4 December 2006) [26] (McMurdo P).
[151] Ibid [33] (Williams JA).
[152] Ibid [40] (White J).
[153] [2008] NSWCA 33 (Unreported, Mason P, Giles JA and Hodgson JA, 18 March 2008).
[154] Ibid [49] (Giles JA).
[155] Ibid [8] (Mason P).
[156] Ibid [53] (Giles JA).
[157] Ibid [19]-[36] (Mason P); at [62]-[81] (Giles JA); at [110]-[134] (Hodgson JA).
[158] See, eg, ibid [22], [24], [27]-[34] (Mason P).
[159] See, eg, ibid [69] (Giles JA).
[160] Ibid [124] (Hodgson JA).
[161] For example, see comments of Hasluck J in DPP (WA) v Mangolamara [2007] WASC 71; (2007) 169 A Crim R 379, 389.
[162] A-G (NSW) v Tillman [2007] NSWSC 605 (Unreported, Bell J, 18 June 2007) [10].
[163] [1996] HCA 24; (1997) 189 CLR 51.
[164] [1988] HCA 62; (1988) 165 CLR 611
[165] Ibid. The section provided that a person convicted of an indictable offence could be detained during the Governors’ pleasure having regard to the circumstances of the offender and the offence.
[166] Ibid 20.
[167] [2008] NSWCA 33 (Unreported, Mason P, Giles JA and Hodgson JA, 18 March 2008); at [72]–[81] (Giles JA); at [102]–[128] (Hodgson JA).
[168] Crimes (Serious Sex Offenders) Act 2006 (NSW) s 3.
[169] [2008] NSWCA 33 (Unreported, Mason P, Giles JA and Hodgson JA, 18 March 2008) [128] (Hodgson JA).
[170] Ibid 121 (Hodgson JA).
[171] [[2006] QCA 324; 2007] 1 Qd R 396.
[172] Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575, 620-621.
[173] [2006] QCA 324; [2007] 1 Qd R 396.
[174] Ibid.
[175] A-G (NSW) v Winters [2007] NSWSC 1071; (2007) 176 A Crim R 249, 259-260.
[176] [2008] NSWCA 33 (Unreported, Mason P, Giles JA, Hodgson JA, 18 March 2008) [20] (Mason P).
[177] [2007] WASC 283 (Unreported, McKechnie J, 26 September 2007)
[178] Ibid [7]; McKechnie J made similar comments in DPP (WA) v Williams [No 3] [2007] WASC 286 (Unreported, McKechnie J, 5 October 2007) [7].
[179] Western Australia v Alvisse [2007] WASC 129 (Unreported, Murray J, 20 June 2007) [10].
[180] [2007] QSC 121 (Unreported, Chesterman J, 28 May 2007)
[181] Ibid [5]–[6].
[182] National Committee on Violence, Violence: Direction for Australia (Australian Institute of Criminology, Canberra 1990) 204-207.
[183] See, eg, A McAlinden, The Shaming of Sexual Offenders: Risk, Retribution and Reintegration (2007) 139-147. Bracelets are expensive, prone to technical problems and can only reveal where the offender is and not what he or she is doing or planning.
[184] See, eg, McClellan J’s comments in A-G (NSW) v Winters [2007] NSWSC 1071; (2007) 176 A Crim R 249, 258-259.
[185] Australian Law Reform Commission, Sentencing, Report No 44 (1988) xix-xx.
[186] J Shapiro and K Chen, Does Prison Harden Inmates? A Discontinuity–based approach (2004).
[187] National Committee on Violence, Violence: Direction for Australia, Australian Institute of Criminology, Canberra 1990, 204-207.
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