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).
