19 May 2005
A High Court ruling that led to a sex offender being jailed indefinitely despite serving his sentence could see detentions for the perceived protection of the community rather than as punishment for crimes, a Monash academic says.
Professor Bernadette McSherry, from the Faculty of Law, said the case of Robert John Fardon -- who was detained after the expiration of his 14-year sentence for sodomising a woman in 1988 -- opened the way for people to be punished for who they are.
Fardon was detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). His 1988 attack on the woman was committed 20 days after he had been released for the earlier rape of a 12-year-old girl and assault of her 15-year-old sister.
Professor McSherry said now legislation enabling the preventive detention of sexual offenders had been declared valid, it was only a matter of time before governments thought of other categories of offenders to detain indefinitely.
"The public's impression that certain offender groups such as those with antisocial personality disorders, paedophiles or suspected terrorists pose a particularly serious menace to society could persuade policymakers to broaden the scope of committable offenders," Professor McSherry said.
"When individuals are incarcerated because they are deemed 'dangerous offenders', then declaring someone an 'enemy of society' seems but a heartbeat away.
"Given the law and order agendas of populist governments, indefinite and preventive detention regimes will no doubt continue to attract wide political support," she said.
Professor McSherry said even though the prosecutors in the Fardon case argued the purpose of the Act was 'community protection, not punishment', detaining someone beyond the maximum sentence granted amounted to double punishment.
"There is a general principle that people should be jailed only after being found guilty," she said. "Even more problematic is the notion that this form of criminality punishes people for who they are, rather than for the crimes they have committed."
For further information or to arrange an interview with Professor McSherry, contact Ms Natasha Whalley on +61 3 9905 9201 or 0437 458 457.
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