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Dangerous Criminals and High-Risk Offenders Bill 2020

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 15 September 2020

Tags: Justice, Corrections, Recidivism, Legislation, Crime

Dr WOODRUFF (Franklin) - Madam Deputy Speaker, our courts in Tasmania have had the power to detain prisoners indefinitely for a long time; I believe the TLRI referenced back to the turn of last century. Generally, indefinite detention of a person can be the result of two different types of orders, depending on the time at which the order is made. Indefinite detention refers to legislation that enables an order to be made at the time of the sentence for an offender to be detained indefinitely. The term 'preventative detention' is used to describe legislation that will require an individual to be detained beyond the date of expiry of their sentence through an order made during the period of the offender's incarceration. Both of these are directed at protecting the community from dangerous offenders and the potential for those people to reoffend.

We recognise that the use of indefinite and preventative detention of a person beyond the time at which the person has served their criminal sentence is a contentious and divisive issue. Indefinite detention necessarily involves balancing a number of potential conflicting rights, the right of the victims and the right of the broader society to safety and an assurance of safety from a person who is a known serious offender and also balancing the rights of the offender themselves to freedom after serving the sentence of imprisonment imposed on them by the court.

Since the introduction of indefinite detention provisions in Tasmania there have been 12 applications for dangerous criminal declarations and, of these, nine applications were successful and resulted in dangerous criminal declarations being made. There have been three unsuccessful applications and the most recent of those was in 2013. Of those offenders who have been declared dangerous criminals, four have made application for the discharge of their dangerous criminal status and only one was successful in their bid. However, the Tasmanian dangerous prisoner regime as it stands at the moment contained in the Sentencing Act 1997 had never been reviewed before that point, even though it has been criticised by a number of bodies including the Supreme Court bench and advocates for its review such as Greg Barns.

Of course the previous Attorney-General, the late Vanessa Goodwin, was herself concerned about these issues and was involved in a referral to the Tasmanian Law Reform Institute which undertook a comprehensive review of the deficiencies contained within the Sentencing Act relating to the power to detain prisoners indefinitely. They also did a detailed analysis of legislation from other Australian jurisdictions that have dealt with that significant issue. The bill we have before us is seeking to address the deficiencies that have been uncovered in the existing dangerous criminal legislation that the TLRI outlined in their 2017 report. I understand that the 10 recommendations in that report have been substantially accepted with some minor changes.

I want to outline the recommendations that came from the Tasmanian Law Reform Institute as they have described them. It is a very important piece of research that the TLRI undertook. All their research is important, of course, but it is important for such a serious matter, which throws away a fundamental right for a person to regain their freedom after they have served the sentence that has been placed on them by the courts for their offending behaviour.

It is appropriate that serious and thoughtful consideration is given to balancing the rights of the offender and the rights of the community and previous victims of the offender to safety and an assurance of safety. The 10 recommendations, what the TLRI proposes and what is contained within this bill seek to provide a fair balance of those rights and the community with the safety we all desire.

The TLRI notes that there should be a higher threshold for a dangerous criminal declaration to be prescribed than currently exists within the Sentencing Act, and the current test within the act that the judge must be of the opinion that the declaration is warranted for the protection of the public should be repealed and instead the test should require that the court must be satisfied the offender is a serious danger to the community. That danger may be because of the offender's character, past history, age, health or medical condition, or the nature and gravity of the serious offence or any special circumstances.

Their second recommendation was that the amendments need to make very explicit the standard of proof that is required in order to impose a dangerous criminal declaration. There should be a higher threshold than is currently in place to remedy an apparent inconsistency between the current legislative standard and judicial practice. That recommendation would bring us into line with other jurisdictions, particularly Victoria, Queensland and the Northern Territory on this matter.

The third recommendation is that they recommend an amendment to provide a comprehensive list of factors that must be considered by a court in making a decision about whether to make a dangerous criminal declaration, that the act should require the court to consider the risks of serious harm to members of the community if an indefinite sentence were not imposed and the need to protect members of the community from that risk.

Dennis J Baker has written a long and considered paper. He is a lecturer from the Faculty of Law in Kings College, London. The paper is entitled Punishment without a Crime: Is Preventive Detention Reconcilable with Justice? and was published in 2009 in the Australian Journal of Legal Philosophy. Mr Baker talks to recommendation 3 from the TLRI which goes to ensuring the need to protect members of the community from risk. He is speaking in relation to high-risk offenders and the opportunity to provide extensive monitoring and to release a person on parole into an electronic monitoring regime, which he says strikes a balance between the offender's interests and harm prevention. Measures such as electronic monitoring are not censoring and are reconcilable, he argues, with fairness. The alternative, he says, is to subject children, women and others to the unfairness that would flow from releasing offenders that clearly continue to pose a real risk. He says given that passive victims are not in a position to alter or control the situation, it is fair to subject the potential aggressor or the controller of a person to the unpleasantness of civil confinement and extensive supervision rather than subject children and others to the injustice of becoming the victim of a serious sex crime.

I think he has captured the reasoning really well in that statement and that is fundamentally underlying why we need to have legal ability to restrain high-risk offenders so that they are not allowed to come into contact with the people who they hold power and control over, or people who they have previously violently offended or assaulted prior to their term in prison.

It removes their having any opportunity to have access to the person. It provides a measure of safety and reduces the anxiety of women and children who have already suffered under an offender's hands.

It importantly removes the potential for an offender released into electronic monitoring to come into contact with people. Even viewing or the feeling that they might see the offender in a public place would place many women and children who have suffered an offence in a state of extreme anxiety. That anxiety is often ongoing and something they hold with them all the time, if they know the person who has so damaged them has been released from prison.

Electronic monitoring is an opportunity in the digital age that is fit for purpose. It provides an ability to strike the balance between securing the rights to safety for women, children and others who may be at risk and the right of the offender to have far more freedom than would be offered to them if they remained in prison.

The fourth recommendation from the TLRI was that the act be amended to clarify that it is intended to create both an indefinite, at the time of sentencing, detention regime, as well as a post-sentence preventative detention regime. The post-sentence preventative detention regime is what this bill provides with electronic monitoring and other parole requirements that could be imposed on the offender. We support them.

The fifth recommendation of the TLRI was that the act be amended to provide that where a post-sentence application is made and the convicting sentencing judge has ceased to hold office or other special circumstances exist where they are not available to make a judgment, that another judge can hear the application for a dangerous criminal declaration. That is the major change that this bill brings. That is an important logistical, practical, inadvertent error in the Sentencing Act that this bill seeks to fix, which we support. It makes no sense that it is not possible to take this preventive measure simply because the judge is no longer there.

The sixth recommendation from the TLRI was that the current act should be modernised to remedy existing deficiencies that the separate provisions for sex offenders not be enacted. Their view is that all should be captured within the recommendations that they have proposed and not have separate conditions for sex offenders.

The seventh recommendation from the TLRI was that the amendment is needed to ensure that dangerous criminal declarations conform with human rights and criminal justice principles in relation to onus and standard of proof. They recommend that consistency be obtained with other jurisdictions in relation to two aspects. First, that the prosecution should bare the onus of proof on an application for imposing a dangerous criminal declaration, an application for discharge as well as a periodic review of a dangerous criminal behaviour declaration.

The second aspect of the standard of proof at each of these stages is that the court ought to be satisfied by acceptable cogent evidence and to a higher degree of probability that the offender is a serious danger to the community. These amendments would bring us in line with other jurisdictions, in particular Victoria, Queensland and the Northern Territory.

The eighth recommendation from the TLRI is that the act provide a list of factors to be considered in determining whether to discharge a dangerous criminal declaration. Those factors should be the same as those that are considered when imposing such a declaration in the first instance so that the court has sufficient guidance on the appropriate factors to be considered when determining whether to discharge a dangerous criminal declaration.

The listed factors should be whether the nature of the offence is exceptional, the offender's age and character, any medical, psychiatry or other relevant reports, the risk of serious danger to members of the community if an indefinite sentence were not imposed, the need to protect members of the community from the aforementioned risk and any other matters that the court thinks fit.

The ninth recommendation of the TLRI is that the act be amended to enable the court to impose both pre- and post-release conditions on discharge of dangerous criminal declarations. Pre-release conditions would enable a court to discharge declarations subject to offenders undergoing treatment programs or achieving results in such programs or participating in reintegration programs design to equip them with the skills that they need to re-enter the community.

The tenth and final recommendation is that the amendment should provide a system of periodic review for dangerous criminal declarations to ensure that the appropriateness of the ongoing detention of offenders is revued at reasonable intervals. It should provide for a revue of application of the offender or the DPP a year before the expiration of the offender's nominal sentence and subsequently at two-year intervals.

That is what the TLRI recommended. In the bill before us that this is substantially what has been introduced. The main changes are that the judges who made the sentence are no longer needed to hear a dangerous criminal or high-risk order case. The second one is that there is now a higher test required for a judge to make a determination. That is there must be a higher degree of probability rather than it simply being warranted, which is currently the case. Queensland, Victoria and Norther Territory use this test, the higher degree of probability.

As recommended by the TLRI, the bill also creates a review mechanism such that 12 months from the end of a dangerous criminal sentence the Supreme Court is required to undertake a review and there is also to guide this process the high risk offenders committee, which will be involved, as I understand it, in the assessment of all high-risk offenders in prison, so once that committee is established they will assess all high-risk offenders in prison, identify those that they consider may be high-risk offenders, and then make recommendations to the DPP to make a high-risk offender order on the release of that inmate from their sentence. The DPP will then make a final decision about that case.

Madam Deputy Speaker, we are satisfied with the treatment of the recommendations that were made by the TLRI as contained within this bill. This has been a long process of consideration and we understand there was support from stakeholders in the way the bill has been drafted and the contents of it.

I would like the minister to perhaps talk through, if she has any information she can provide, about the number of people who may be considered high-risk offenders, a little more detail about the review process that will be undertaken, and the possibility of an offender making an application between a review for a reassessment if they do not agree with the assessment that was made.

Thank you to the staff for the high-quality briefing they gave and the time they provided to answer our questions. We are happy to support the bill that is on the table.