Is it fair to keep sex offenders in prison beyond their sentence if they’ve done nothing wrong during their sentence?

The Crimes (Serious Sex Offenders) Act 2006 (NSW) enables the Attorney General to apply for ‘continuing detention orders’ to keep ‘serious sex offenders’ in custody beyond their prison terms and ‘continuing supervision orders’ to intensely supervise offenders after release.

Continuing Detention Orders

Applications for continuing detention orders can be made regardless of whether or not the offender has committed any offences while in prison.

They are also regardless of whether:

(1) the offender has engaged in rehabilitation programs while in prison, and

(2) the fact that the person will be on the Sex Offenders Register after being released – meaning that he or she cannot live within a certain distance of schools etc, must notify police of various matters including any change of address, etc.

Of course, the Act patently undermines the certainty of a person’s prison sentence.

For instance, if you’re sentenced to 10 years imprisonment with a 7 year ‘non-parole period’, you would expect to be in prison for a minimum of 7 years and a maximum of 10 years.

However, the Act allows the Attorney General to apply to keep you in prison for more than the 10 years that was set down by the court.

This takes power away from the courts – who have impartially considered the case – and places it in the hands of a government interested in ‘winning votes’.

This is dangerous because it enables media reporting and community outrage to determine whether a person’s prison sentence is likely to be extended, rather than sentencing decisions being made by an independent judiciary.

It should be noted that prison terms in NSW are ‘certain’ which means they cannot be reduced for ‘good behaviour’ or for any other reason.

This is different to the USA where prison sentences can be reduced for a range of reasons such as good behaviour, efforts towards rehabilitation, assistance to authorities and even over-crowding!

Of course, it would be unthinkable for a prison term in the USA to be increased without the offender having committed further offences.

So why should the NSW government be able to arbitrarily extend prison sentences……?

Continuing Supervision Orders

The ‘Serious Sex Offenders Act’ also enables the Attorney General to make applications to intensively supervise ‘serious sex offenders’ beyond their probation periods.

The level of supervision is far greater the existing provisions of the Sex Offenders Register.

The most onerous conditions are in bold italics below.

The conditions include that:

– any corrective services officer can visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address

– any corrective services officer can access any computer or related equipment that is at the offender’s residential address or in the possession of the offender

– the offender report to a corrective services officer as required

– the offender must participate in any treatment and rehabilitation programs as directed

– the offender must wear electronic monitoring equipment

– the offender must live at an address approved by the Commissioner of Corrective Services

– the offender must not to associate or make contact with specified persons or classes of persons

– the offender must not to engage in specified conduct or classes of conduct

– the offender must not engage in specified employment or classes of employment

– the offender must not not to change his or her name.

It should be remembered that this is AFTER the person has completed his or her prison sentence AND completed the onerous requirements of probation AND is being supervised by way of the Sex Offender Register.

Accused has no remedy against false application

A person against whom an application is made cannot apply for legal costs or take legal action against the applicant, even if the application had no basis whatsoever.

This is regardless of whether the person’s reputation was defamed through a frivolous, vexatious or entirely politically-motivated application.

Retrospective Effect

In practice, the ‘Serious Sex Offenders Act’ allows the government to retrospectively sentence particular ‘serious sex offenders’ to ‘win political points’, despite that person having ‘done their time’ and ‘done nothing wrong’ in prison.

Reaction by Criminal Lawyers

Lawyers have widely criticised the Act, including Pauline Wright of the NSW Law Society’s criminal law committee, who says that:

‘It is completely inappropriate to punish someone for something they might do in the future… you don’t punish someone unless they’ve done something wrong and that is proven beyond a reasonable doubt’.

‘If you start chipping away at the pillars of the justice system the whole thing can come crashing down and this is one of those fundamental pillars’.

My Views

Society should, of course, guard against future offending, particularly in the context of sex offences which invariably have a life-long, devastating impact upon victims.

That impact reaches into every aspect of a victim’s life.

This is why the Sex Offenders Register exists – ensuring that released offenders are supervised and restricted in various ways to reduce the likelihood of re-offending.

The ‘Serious Sex Offenders Act’ goes way too far by:

(1) eroding the presumption of innocence,

(2) undermining the independence of the judiciary and

(3) taking away certainty in sentencing.

My opinion is that having the possibility of an extended prison term ‘hanging over your head’ when you’ve done nothing wrong in custody could decrease any incentive to participate in rehabilitation or vocational programs and to work towards ultimately becoming a productive member of society upon release.

It fosters resentment and is counter-productive.

I believe that forcing a person to wear a monitoring device and to live in a specific property despite having ‘done their time’ could compound and protract their stigmatisation, and thereby fail to reduce the likelihood of re-offending in the long term.