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Dangerous Offenders Legislation: An Overview

Dangerous Offenders Legislation: An Overview

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 14/1997 by Honor Figgis and Rachel Simpson
There are relatively few offenders who are 'dangerous' in the sense that they pose a continuing real danger of serious harm to members of the public. Most serious crimes against the person are committed by people who have not previously offended, and most offenders convicted of violent offences do not repeat their crimes. However, there are a small number of 'career' violent offenders who do present a continuing risk (pp 9-11).

The concept of dangerousness is ambiguous and subjective - what is dangerous depends on what one is prepared to put up with. Attempts to define 'dangerousness' raise a number of questions, including what kinds of harm are 'serious', and how likely a person must be to cause such harm in order to be classed as dangerous. Most dangerous offender legislation is aimed at people who pose a real risk of inflicting serious physical harm on others, such as murder, attempted murder, and violent and sexual assaults. The kinds of serious harm which attract protective measures often also include arson, robbery and drug trafficking offences (pp 6-7)

'Dangerous offender' laws are generally aimed at protecting the public by removing persons identified as dangerous from the community. The focus of these laws tends to be on incapacitation of offenders rather than punishment or treatment/rehabilitation, although these last two approaches are often combined with incapacitating measures. Incapacitation may be selective (aimed at particular offenders individually assessed as dangerous) or general (aimed at groups of offenders on the basis of their offences). Dangerous offender measures take several forms:
  • Protective sentencing involves imposing sentences that detain certain offenders for longer than their offences would otherwise justify. These measures include sentencing dangerous offenders on the basis of special sentencing principles; indefinite sentences; mandatory or minimum sentences; cumulative sentences; recidivism laws; life imprisonment without parole; and creating offences that may warn of the potential for grave harm, such as the making of mass threats (pp 14-25).
  • Restricting or abolishing parole involves making it more difficult for offenders to be released early by tightening the criteria for parole, setting long non-parole periods, establishing a presumption against parole, or otherwise limiting the ability of the Parole Board to grant parole. Parole may also be abolished for offenders to ensure that they serve their total sentence (pp 25-32).
  • Preventive detention involves detaining persons to prevent them committing future grave harms. It is usually a post-sentence measure used to incapacitate persons who have served their sentence and so must be released, and who cannot be detained involuntarily under mental health laws. Preventive detention measures vary from clinically-based detention in hospitals, asylums and so on to incapacitation-based detention in prison or civil institutions (pp 32-39).
  • Supervision in the community involves monitoring and controlling offenders who have been released, in order to limit their opportunities to commit further crimes. These measures include community notification of the presence of an offender, and long-term parole supervision (p 39).

Dangerous offender measures raise a number of issues. There is the practical problem of predicting dangerousness. Mental health professionals and other experts are not able to predict accurately which offenders will commit violent acts. Research studies have indicated that assessments of individuals as 'dangerous' are more likely to be wrong than right, and that there is a tendency to over-predict dangerousness (that is, to identify people as dangerous who do not, in fact, go on to injure others) (pp 9-11)

Detaining persons to prevent future crimes also poses an ethical problem of incarcerating individuals for crimes that they have not committed, and may well not commit. Detention of offenders solely for the purpose of community protection involves a choice between possible grave injury to members of the public and certain deprivation of liberty for offenders whose future conduct can only be estimated. Many argue that because offenders have already committed a serious offence, they forfeit the presumption that they are free of harmful intentions. It may therefore be justifiable to favour the potential victims and burden the known offender (pp 11-13).

There is also the question of whether dangerous offender legislation will in fact have an effect on public safety. It seems that a policy of detaining dangerous offenders for longer than their offences would otherwise justify is unlikely to reduce significantly the number of grave crimes against the person (pp 13-14). Some commentators have questioned whether public alarm in itself justifies exceptional protective measures regardless of whether the alarm is reasonable or excessive (p 14). It has also been argued that statutory powers to detain persons other than by the normal processes of the criminal law may be open to abuse for political purposes, to suppress awkward dissidents or opponents (p 14).

Other issues raised by dangerous offender legislation include:
  • Role of judicial and executive discretion: The legislature's role in sentencing has traditionally been to set maximum sentences and articulate sentencing policies. To what extent should the legislature direct the exercise of the judicial sentencing discretions, or executive government discretions such as decisions to grant parole? (p 39).
  • Constitutional limitations: The New South Wales Parliament's ability to enact some forms of preventive detention is restricted by the High Court decision in Kable v DPP. Other possible options include individual-specific legislation directly detaining particular offenders, and a preventive detention system administered by the executive government (pp 35-38).