Tasmania Law Reform Institute Report Suggests Review of Dangerous Prisoner Regime

Wednesday 19 July 2017 @ 10.28 a.m. | Crime | Legal Research

A recent report by the Tasmania Law Reform Institute has outlined the need for review of the dangerous prisoner regime, which is encapsulated in the Sentencing Act 1997 (Tas) ('the Act'). The dangerous prisoners regime allows the court to declare an offender as such, and therefore allows for indefinite sentencing until the classification is disharged. The key finding of the report is that the flaws in the current regime are causing courts to err on the side of caution, and under-utilising it. The report compares the Tasmanian legislation with similar laws in Victoria, Western Australia, Queensland, the Northern Territory and South Australia. The author of the report, Taya Ketelaar-Jones said:

“Courts in Tasmania have long had the power to detain prisoners indefinitely, but the Tasmanian dangerous prisoner regime has never been reviewed despite it receiving criticism from various quarters, including the Supreme Court bench.”

Current Legislative Regime

Section 19 of the Act contains provisions that allow a court to declare a violent offender as a dangerous criminal if the offender is above 17 years of age, has been convicted of a crime involving violence and if they have at least one previous conviction for a violent crime. The test is that the judge must be satisfied that the declaration is necessary for public protection. Under this regime, there have been twelve applications made for dangerous criminal classification in the state, and nine have been successful.

Other Jurisdictions

Victoria

The legislation governing a similar regime in Victoria is the Sentencing Act 1991(Vic). Section 18B provides that if the court is satisfied to a high probability that the offender of a serious offence is a serious danger to the community, they can be classified as a dangerous criminal. Opportunity for review is available under section 18H, and section 18M stipulates that unless the court is convinced that the offender is a serious danger to the community, it must discharge the sentence and make the offender subject to a 5 year re-integration program upon review.

Queensland

In Queensland, a similar regime is contained in the Penalties and Sentences Act 1992 (QLD) sections 163 and 170. The court must be satisfied that the violent offender presents a serious danger to the community based on acceptable cogent evidence and to a high degree of probability. Under section 173, if the offender initiates a review of the classification or if it is periodic, the court must discharge the sentence and impose a finite sentence unless satisfied that the offender is still a serious danger to the community.

The Report: Key Recommendations

The report outlined a number of recommendations which are:

  • To insert a higher threshold for the imposition of a dangerous criminal declaration;
  • To make amendments to the Act to make explicit provision for the standard of proof, which is recommended to be that the court is satisfied by acceptable evidence and a high degree of probability of serious danger to the community;
  • To amend the Act to provide a comprehensive list of mandatory factors to consider;
  • To amend the Act to clarify that it is intended to create both an indefinite detention regime as well as a post-sentence preventative detention regime;
  • To amend the Act to provide that another judge may hear the application for the dangerous criminal declaration in the case of the convicting/sentencing judge ceasing to hold office;
  • To clarify that provided the current Act is amended according to the previous recommendations, separate provisions for sex offenders not be enacted;
  • To insert provisions ensuring that the prosecution bears the onus of proof in an application for the imposition of a dangerous criminal declaration, application for discharge, and periodic reviews of the declaration;
  • To amend the Act to enable the Court to impose pre- and post-release conditions on discharge of dangerous criminal declarations; and
  • To amend the Act to provide that the appropriateness of the ongoing detention of offenders is reviewed at reasonable intervals as a safeguard against the institutionalisation of offenders entitled to release.

Reaction and Response

Chairman of the Prisoners Legal Service Greg Barns said the current law was cruel:

“The current law means that there are people languishing in our prison who are little or no threat to anyone in our society and who are being kept in prison simply because the law in Tasmania is desperately in need of reform.”

The acting Attorney-General of Tasmania, Matthew Groom stated that the Government was committed to protecting Tasmanians. He said:

“This research paper will assist in this process — this is a very complex area of law reform and we will continue to take advice from numerous sources.”

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Sentencing Act 1997 (Tas), published on TimeBase LawOne.

Sentencing Act 1991(Vic), published on TimeBase LawOne.

Penalties and Sentences Act 1992 (QLD), published on TimeBase LawOne.

Taya Ketelaar-Jones,  A Comparative Review of National Legislation for the Indefinite Detention of Dangerous Criminals’ (2017) 4 Tasmania Law Reform Institute.

Jessica Howard, ‘Review of Tasmania’s dangerous prisoner regime long overdue, say Law Reform Institute experts,’ (The Advertiser),  12 July 2017.

Rhiannon Shine, ‘Dump 'cruel' indefinite detention for dangerous criminals, Tasmanian law reform group says,’ (ABC News) 12 July 2017.

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