Post Sentencing Considerations

POST-SENTENCING CONSIDERATIONS

Including Security classification Protective custody Parole Preventative detention Continued detention Sex offenders registration Deportation

EXAMINE the implications of post-sentencing considerations in

achieving justice



So, remember, we’re asking questions AND writing some possible answers in order to EXAMINE…

But look at the red box – ‘EXAMINE the IMPLICATIONS of post-sentencing considerations in achieving justice’




achieving justice



IMPLICATIONS = CONSEQUENCES

So, we need to look at the CONSEQUENCES of some of these decisions, and whether we think they’re really ACHIEVING JUSTICE

e.g. The consequence of ‘continued detention’ is that offenders are kept in prison after serving their whole sentence. Is this a good way of achieving justice? For whom?




achieving justice



SOME of these issues don’t really have big ‘justice’ questions to go along with them, but SOME do (especially ‘Parole’ and

‘Preventative/Continued Detention’)




AFTER the defendant has been sentenced to a punishment, there are STILL more issues that

MIGHT need to be decided on (not in every case though).

Security Classification

Protective Custody(for all or part of the

sentence)

Parole(possible, but not

guaranteed)

Preventative/Continued Detention

Sex Offenders

Registration(obviously, for serious

sex offenders)

Deportation (for non-citizens in

Australia less than 10 years and facing 12

months or more jail)

Non-Parole Period Parole possibleBefore Incarceration

Found Guilty and sentenced

to imprisonment

After sentence served

When released…



1. Security ClassificationOnce the offender has been found guilty AND sentenced to imprisonment, the next decision is WHERE they should go to prison.

There are over 30 prisons in NSW alone (we have over 10,000 prisoners). So the Department of Corrective Services makes a decision about where the offender should serve his sentence.

This is worked out by giving each prisoner a Category for their security classification.

Category A prisoners are dangerous

Category C the least serious and

Category E prisoners are escape risks.

This helps decide which prison they are going to (Maximum, Medium or Minimum Security).

The prison at Goulburn is a “Supermax” prison for the most dangerous criminals (serial killers, gang leaders, etc). 4 Corners - Supermax



2. Protective Custody

Some prisoners are put in separate areas of the prison (or moved elsewhere).

This is often because their lives are in danger (e.g. they are informants; they are in prison for child sex offences).




This is what happened to the former Deputy DPP of NSW Patrick Power in the case Police v Power (2007). Basically, this was the second in charge guy when it came to prosecuting ‐ ‐criminals in NSW and he HIMSELF was found to be in possession of child pornography. He got 15 months in prison, but only served 8 months because he was in protective custody the whole time (since he was responsible for putting some of his fellow prisoners in jail).

WTF?Being isolated from other prisoners is WORSE than being locked in there with them?

This has been the general presumption in the past – that it is harder to “do time” by yourself than with other inmates (R v Gilchrist (1991))

BUT NOW…



So, for example, if you’re a police informant, you USED TO get a discount for providing information to police, AND you would be put into protective custody in prison AND you would get an EXTRA discount for being stuck in protective custody.

John Hatzistergos, (Former) NSW

Attorney-General

Judges, when sentencing, will just have to acknowledge that prisons are now a safer place NSW Labor was just

trying to seem tough before the 2010

electionThese prisoners get locked away, sometimes 23 hours

a day, away from everything




Prisoners in NSW now have to PROVE that they face tougher conditions than other inmates BEFORE they get a sentence discount for the extra hardship that might come with being stuck in protective custody.

NSW limits sentence discounts for criminals, The World Today Program, Radio National (2010)




If you get parole, you are released from prison on certain conditions. Technically, you are still serving your jail term, but you are being brought slowly back into the community.

The decision to grant (allow) parole is made by the Parole Board.

The Board will look at things like:

- The inmate’s conduct while they have been in prison;

- Whether parole is in the interests of the community; and

- How well the inmate will reintegrate into society.

3. Parole



BOCSAR found that prisoners released on parole were more likely to be reconvicted than those released without supervision.

Monitoring trends in re-offending among offenders released from prison, BOCSAR (2008)

Big recent parole cases: Lim v State Parole Authority and NSW A-G (2010)

andNSW A-G v Chiew Seng Liew (2012)

(both were about the murder of Dr Victor Chang)

The government resisted these decisions and the media were outraged. But the parole decision should be based on the offender,

NOT whether the victim happened to be a famous surgeon.

3. Parole



But our system might be changing…

In 2013, the NSW Law Reform Commission was given the job of investigating our parole system in NSW to see how it could be improved.

Just like the ‘Criminal Appeals’ report, their Parole report probably won’t be released until the end of 2014 (but keep checking the facebook page to see if there are any releases of ‘discussion papers’ or major submissions from the public).

3. Parole



Terminology problem…

There are 2 types of ‘preventative detention’

1. Arresting and detaining someone without charging them e.g. The Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005, which allows a person not charged with any offence to be kept in prison up to 14 days, which is similar to the Commonwealth law used in the Haneef case)

2. Keeping an offender in prison after their sentence is finished.

The SECOND one is what we’re looking at here (I assume, because it is under ‘POST-sentencing considerations’)

4. Preventative Detention



Terminology SOLUTION…

We won’t call it ‘preventative detention’ when it’s the one after the prisoner has served his sentence

Preventative Detention=

CONTINUED detention

(that 2nd type of)

4. Preventative Detention



Major cases and legislation:

Kable v DPP (1995) - Kable stabbed his wife; was about to be let out on parole after serving his sentence; the press found out he had sent threatening letters to his dead wife’s sister; NSW Parliament violated the separation of powers and passed a law called the Community Protection Act 1994 (NSW) which was literally passed just to keep HIM in jail; he appealed it; he won; he’s out now.

When prisoners are kept in prison AFTER they have finished their sentence.

The issue of continued detention has been highly controversial in Australia recently.

5. Continued Detention






The Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) and the case Fardon v Attorney-General (QLD) (2004) (where the law WAS found to be lawful because it wasn’t just made for one person).

He was finally released despite appeals from the government at the end of 2013.








The Crimes (Serious Sex Offenders) Act 2006 (NSW) and the case Tillman (2007)

This was heavily criticised in the article ‘No exit: Sex Offenders Jailed for All Time’ (SMH, 2008).






Justice Kirby (in the High Court) said this was ridiculous and refused to go along with all the other judges in allowing this law to remain.

"In Australia, such punishment … is not available for crimes that are feared, anticipated or predicted to occur in the future, on evidence that is notoriously unreliable and otherwise would be inadmissible, and by people who do not have the gift of prophesy."






But it’s not just for serious sex offenders anymore…

Like most changes to the law made for “special cases”, the NSW government has expanded the law to include other offenders.

There is very little to stop future governments from expanding this further, until prisoners are regularly kept in jail after their entire sentence.






But it’s not just for serious sex offenders anymore…

Crimes (Serious Sex Offenders) Amendment Act 2013

Crimes (Serious Sex Offenders) Act 2006

Crimes (HIGH RISK Offenders) Act 2006!!!



The Crimes (HIGH RISK Offenders) Act allows a single judge to keep someone in jail (after being convicted of, say, conspiring to bash someone) WITHOUT even being 50% sure in his or her head that the person may reoffend.

Theoretically, it’s possible that they could keep someone in jail, possibly forever, for CONSPIRING to commit a crime WHEN THEY WERE A KID - that's nuts.






Once someone who has committed a sexual offence against a child (or children) is released from jail, they have to register as a sex offender (under the Child Protection (Offenders Registration) Act 2000 (NSW) and similar laws in every State and Territory.

They are then put on the Australian National Child Offender Register (ANCOR) for at least 8 years (if they’re an adult).

6. Sex Offenders Registration



In W.A. in 2012, the government brought in a semi-public list of sex offenders on the internet (you can search your local area, or request to find out whether a specific person is on the list).

CONTROVERSIAL ISSUES: 1. Is there a fair balance between the rights of offenders and society. 2. There is also a question of the program’s effectiveness in preventing

future sexual assaults (which is difficult to tell).- Moral Panic: does public registration of sex offenders work? (Crikey 2012)

- Stress on sex offenders increases risk of re-offending (SMH 2012)

6. Sex Offenders Registration



Non-citizens who have been in Australia less than 10 years and were sentenced to more than 12 months

imprisonment can be deported (sent back to their home country).

7. Deportation

This is done under the Migration Act, usually because a person convicted of a crime like this and put in

prison for more than a year now fails the ‘character test’ that non-citizens have to pass in order to stay in

the country



PROBLEM: The decision is often made by the Immigration Minister, and it

can’t be reversed by the courts.

The decision to permanently remove someone from the country without giving them the right to appeal the decision OR need for the

decision to be based on any facts is SCARY! This was definitely a problem in the Haneef case, where he was deported due to public

opinion and politics instead of actually being of bad character…

7. Deportation



7. Deportation

Recent big cases:

1. Choon Tee Lim (2010) and Chiew Seng Liew (2012) (who were convicted of the murder of Victor Chang, served around 20 years and were deported)

2. Muhamed Haneef (2007) (who, it turned out, had not committed any crime, but had his visa cancelled anyway, making staying in Australia illegal).

Post Sentencing Considerations

Education

Transcript of Post Sentencing Considerations