Doing time for the risk of a crime?

October 2005

Professor Bernadette McSherry

Monash law Professor Bernadette McSherry argues that a recent high court ruling could mean some prisoners are punished for who they are, rather than their crimes.

Photography: Melissa Di Ciero

Until last year, keeping offenders in detention after the expiry of their sentence was considered unconstitutional. While judges were allowed to make indefinite detention orders for serious offenders at the time of sentence, the general rule was that offenders should be punished for what they had done, not for what they might do.

However, a majority of the High Court last year upheld Queensland's Dangerous Prisoners (Sexual Offenders) Act 2003 in the Robert John Fardon case. The Act, introduced by the Queensland parliament prior to Fardon's scheduled release, enabled the continued detention in prison of sex offenders after the expiry of their sentence. It also enabled continued supervision of such offenders if they were released into the community.

An application by the Queensland Attorney General under the Act had resulted in Fardon being detained after the expiration of his 14-year sentence for raping and seriously injuring a woman in 1988. This crime was committed just 20 days after Fardon had been released for the earlier rape of a 12-year-old girl and the assault of her 15-year-old sister.

The High Court decision signals the opening of the door for preventive regimes across Australia and may also lead to the enactment of legislation allowing for the preventive detention of other categories of prisoners.

The Western Australian Government has expressed an interest in enacting similar legislation, and the Victorian Government passed legislation earlier this year which, while not as sweeping as the Queensland Act, enables continued monitoring of sex offenders after they have served their sentence.

While it is understandable that governments wish to be seen to be tough on law and order issues, preventive detention regimes provide a questionable solution to protecting the community from potential harm. The Queensland regime can be criticised on four major points:

• it makes 'potential risk to the community' the criterion of imprisonment;
• it contains no provisions contemplating additional therapeutic supports or imposing any obligation on corrective services to rehabilitate the prisoner;
• it requires the Supreme Court to have regard for evidence that would ordinarily be excluded in a criminal trial; and
• it denies prisoners access to post-prison community-based release programs -- thereby removing social supports that might improve their chance of reintegrating into the community.

Preventive detention regimes also raise a number of policy issues.

One important premise behind the rule of law is that governments should punish criminal conduct, not criminal types. Yet Queensland's preventive detention legislation ignores this premise. The very title of the Queensland Act attests to this.

Secondly, preventive detention regimes are contrary to the principle of finality of sentence. That is, the detention of a person beyond the maximum sentence granted amounts to double punishment and offends the double jeopardy rule (where an individual cannot be tried again for the same offence if acquitted).

Thirdly, the High Court has laid down the principle that detention in prison should only be a consequence of a finding of guilt. While there are certain exceptions to this general rule, the question needs to be asked -- why should the protection of the community be sufficient justification for the deprivation of liberty?

Finally, as preventive detention regimes rely on predicting the prisoner's future conduct, problems associated with mental health professionals assessing the risk of future harm are also raised. Assessing the risk of future violence is a notoriously difficult task. It is questionable whether actuarial data can be used to accurately predict the likelihood of future acts of sexual violence with respect to any specific individual within a cohort labelled sex offenders.

There is some reason to believe judges will take a cautious approach to the use of the Queensland legislation. Early applications made under the Act prior to the High Court decision were dismissed on the basis that the prisoners were denied procedural fairness due to not having an appropriate time to prepare a sufficient defence.

Only two individuals have been kept in prison under the Act -- Robert John Fardon and Darren Anthony Francis, who was convicted of a number of aggravated sexual assaults over a three-month period against a 20-year-old woman with whom he had been living. Francis had previously been sentenced in New South Wales for similar assaults against another woman.

While there is every reason to expect that applications will increase now that the validity of the legislation has been confirmed, it may be that judges will feel more comfortable with making continuing supervision orders rather than keeping the prisoner in the same cell for an indefinite time.

If legislation enabling preventive detention after the expiry of a sentence becomes the norm, then what is to stop legislation enabling the continued detention of individuals in other groups labelled 'dangerous'? When individuals are incarcerated because they are deemed a risk to the community, then declaring someone an 'enemy of society' seems but a heartbeat away.

Professor Bernadette McSherry is associate dean (research) of Monash University's Faculty of Law. She also holds the Louis Waller Chair of Law.