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Analysis of Post-Sentence Preventive Detention Legislation in Australia Essay (Critical Writing)

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Updated: May 13th, 2022

In 20xx, the Australian Government has introduced the new policy, known as the Post-sentence preventive detention. As soon as this policy was implemented, it raised much debate with regard to its ethics and morals. This criticism is far reaching, as all the cases were handled with due process and fairness of the law. The policy provides for the Supreme Court to order indefinite continued imprisonment or post-sentence monitoring of a serious sexual offender if the court perceives the offender to be a threat to the community after completion of the term. In this paper, the legislation and the legal framework will be firstly described, and the just nature will be analyzed in accordance to court rulings.

Summary of the legislation

One of the strengths of the legislation is that it permits the Courts to order continued sentencing of convicted sex offenders upon assessment of their potential to pose threat to the community after completion of term. Mr. Fardon is presented as an example case, as substantial recurrence of crime came to be high-risk behaviour (Ronken & Johnston 2008, p. 1). The appeal was denied as to constitutional rights being violated and this answers to the new legislation that was established. Nonetheless, the issue of dangerousness and intolerable risk begs the legislation to tackle the competing community right against the rights of the sexual offenders, even though, the science of quantifying the risks sexual offenders pose to the community is inadequate. This is a decision between rights of victims and offenders, and which one should be taken as the most valuable one. This legislation was initiated in 2003, in Queensland under the Dangerous Prisoners Act 2003 to permit for indefinite holding of sex offenders perceived to pose serious threat to the community wellbeing after completion of sentence until full rehabilitation (McSherry, Keyzer & Freiberg 2006). The purpose of the legislation was to safeguard a person from anyone who poses a risk to the community. Despite the initiation of this legislation having endured a High Court challenge disputing its consistency to the Australian Constitution, controversy regarding this debate continues. All the laws relating to post sentencing have been upheld, which proves that the legislation fulfils its purpose, and on a closer examination, it is possible to see that it is a reasonable and fair criteria of the applied law.

Policy elements

Post-sentence preventive detention pertains to holding the offenders after they have completed their full term for a particular crime(s) where they have been found guilty. The sentencing already passes as a punishment to the offender, and any post sentence restraint adds to further punishment of the released convict. The goals of preventive detention program are the safety of the community and correction of the offender (McSherry et al. 2006, p. 29). The post-sentence preventive detention aims at sex offenders that permit post-sentence preventive detention in prison. The basis of this policy is adequate community safety and continued restraint, care and/or therapy of a prisoner to aid their rehabilitation (Doyle & Ogloff 2009). This policy targets offenders who are incarcerated for a serious sexual offence, regardless of the time of sentence commencement, relative to enactment of the legislation. However, the scope of the offense for which the policy applies varies between states. In the states of Queensland, Western Australia, and New South Wales, the adoption time is limited to the last six months of the convicts’ terms of incarceration. The program of Queensland obliges that the legislation guarantee that the prisoner achieves complete benefit of treatment opportunities afforded during the entire term. In the programs used by the three states, the Supreme Court is the body that decides whether the court should place the sexual offenders on preventive detention order or not. In Victoria, the application of this policy requires a satisfaction to a high probability that the offender will repeat a sexual offense upon completion of term and subsequent release back to the community (McSherry et al. 2006, p. 31). Supposedly, the researcher should review the criminal history of the sexual offender to conclude whether he poses high probability of potential risk or not.

The criteria for applying the policy to an individual offender have many loopholes, some of them leading to unnecessary punishment of serious sexual offenders. In various preventive schemes, the Supreme Court evaluates the tendency of the offender to repeat the crime. The court has to perceive a high degree surety that the probability of the offender’s recidivism after term completion is enough grounds to apply the policy. However, there is likelihood that the judge may commit fundamental attribution error (Forgas 1998: Gilbert, Jones & Austin 1986) in his or her decision to apply the post-sentence preventive detention leading to unfair extension of term for crime not committed. Sometimes, the evidence presented points in the wrong direction and does not allow objective and fair decision to be made. Eyewitnesses are often instrumental in providing testimony, but their perspective or recollection of events might be skewed from the truth. Sufficient proof of probability for recidivism is objectionable threat of the criminal recidivism after release from custody and/or free from judicial supervision (Mercado & Ogloff 2007). If the court finds the offender to pose serious threat to the community, the court must issue a subsequent supervision order to safeguard the community from the threats of serious sexual offender, or if it is necessary to make an order for preventive detention (Sentencing Advisory Council 2006). Preventive detention is just like an extension of the sentence term. This is a weakness because the sentence matched the offense in the first place. Therefore, an extension of the detention or supervision amounts to a disproportionate punishment for a crime.

Law and constitution

Various constitutional issues are connected to this legislation. These arguments focus on the consistence of the legislation with the constitution. This issue was underscored in the case of Gregory Kable in connection to the Community Protection Act 1994 (NSW) (McSherry et al. 2006). This offender was sentenced for manslaughter of his spouse. In this case, the act is inconsistent with chapter III of the commonwealth Constitution. The Community Protection Act 1994 jeopardizes the strength of the judicial system developed under Chapter III since it requires the Supreme Court to implement a non-judicial role (McSherry et al. 2006, p. 38). With this application, the non-judicial role distances the court from the courtroom and procedure, making a more personal application from the perspective of the person being tried.

This policy needs to be amended because it violates the rights of the offenders. The criteria for deciding whether the policy should be adjusted so that the evaluation for probability of recidivism is conducted in tandem with the court hearing. The court should apply the law to those offenders that have history of committing sexual offense or other crimes, while excluding first time offenders. At the same time, the circumstances of the case play an important role, as even some first time offenders might behave in a way that deserves a punishment equal to that of repeat offenders. Overall, the system should consider the reasons, mens rea, for the crime and the existing consequences. The post-sentence preventive detention policy works only for special cases. Its weaknesses outweigh the perceived benefits. The initiation of this policy reflects a fault in the judiciary system, as it fails to live up to the expectation of the society of correcting criminals, and rather victimizes individuals who are rightfully entitled to freedom after completion of sentence. Changes in the correctional facilities must be made to ensure that the offenders undergo psychological transformation once they pass through the system.

Reference List

Doyle, D & Ogloff, J 2009, ‘Calling the tune without the music: a psycho-legal analysis of Australia’s post-sentence legislation’, Australian and New Zealand Journal of Criminology, vol. 42, pp. 179-203.

Forgas, J 1998, ‘Happy and mistaken? Mood effects on the fundamentals attribution error’, Journal of Personality and Social Psychology, vol. 75, pp. 318-331.

Gilbert, D, Jones, E & Austin, T 1986, ‘Perceiver-induced constraint: interpretations of self-generated reality’, Journal of Personality and Social Psychology, vol. 50 no. 2, pp. 296-280.

McSherry B, Keyzer, P & Freiberg, A 2006, ‘Preventive Detention for ‘Dangerous’ Offenders in Australia: A Critical Analysis and Proposals for Policy Development’, Monash University.

Mercado, C & Ogloff, J 2007, ‘Risk and the preventive detention of sex offenders in Australia and the United States’, International Journal of Law and Psychiatry, vol. 30, pp. 49-59.

Ronken, C & Johnston, H 2008, ‘Balancing rights: arguments for indefinite detention of dangerous sex offenders’, Sentencing Conference (pp. 1-11), National Judicial College of Australia.

Sentencing Advisory Council 2006, High-risk offenders: continued detention and supervision options, Melbourne, Victoria: Sentencing Advisory Council.

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IvyPanda. "Analysis of Post-Sentence Preventive Detention Legislation in Australia." May 13, 2022. https://ivypanda.com/essays/analysis-of-post-sentence-preventive-detention-legislation-in-australia/.

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IvyPanda. 2022. "Analysis of Post-Sentence Preventive Detention Legislation in Australia." May 13, 2022. https://ivypanda.com/essays/analysis-of-post-sentence-preventive-detention-legislation-in-australia/.

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