Sentence and Release Options for High-Risk Sexual Offenders

Report prepared for the ACT Government on

by Professor David Biles OAM

Consultant Criminologist and Professorial Associate, Charles Sturt University

September 2005

Australian Capital Territory, Canberra 2005 Department of Justice and Community Safety GPO Box 158 Canberra ACT 2601 For an electronic version of this guide visit the publications area in the JACS website, at www.jcs.act.gov.au For telephone enquiries about this guide, please call: (02) 6207 0595 or 6207 0520

2 Contents

Page 1. Executive Summary...... 4 2. Introduction...... 7 3. Terms of Reference...... 9 4. Acknowledgements...... 11 5. Australian Law and Practice ...... 12 5.1 New South Wales...... 12 5.2. Victoria ...... 15 5.3. Queensland...... 17 5.4. Western Australia ...... 18 5.5. South Australia ...... 19 5.6. Tasmania...... 20 5.7. Northern Territory...... 21 6. Overseas Law and Practice ...... 22 6.1. United Kingdom...... 22 6.2. Canada...... 27 6.3. New Zealand ...... 30 6.4. United States ...... 31 7. An Analysis of the Alternative Models ...... 34 8. The Determination of High-Risk Sexual Offending...... 37 9. The Effectiveness of Sexual Offender Treatment...... 43 10. Human Rights Considerations ...... 50 11. Discussion and Conclusions ...... 56

Appendices...... 62 Appendix A Bereavements Inc Position Paper ...... 63 Appendix B Deakin Law Review, 2004, article by Anthony Gray...... 88 Appendix C About the Author ...... 101

1. Executive Summary

The first phase of this project in mid July 2005 comprised the sending of requests for information to all Australian jurisdictions as well as the United Kingdom, Canada and New Zealand. The information sought included details of any special legislation enacted to curtail the activities of high-risk sexual offenders, any provisions in the general criminal law which could lead to the imposition of indefinite or indeterminate sentences on offenders of this type, the numbers of offenders dealt with under either of these provisions, and any evidence of the effectiveness of these measures. The United States was added to the overseas jurisdictions when a rich source of relevant information became available.

This survey of the law and practice revealed that in Australia, only Victoria and Queensland had enacted special legislation on this subject. The Victorian legislation provides for the possibility of high-risk sexual offenders being ordered by a court to submit to supervision in the community for up to 15 years after any prison sentence or parole order has been served. This legislation commenced in May 2005. The Queensland legislation, which was enacted in 2003, provides for the Supreme Court, on the application of the Attorney-General, to order either continuing detention or continuing supervision in the community of serious sexual offenders who have completed their sentences. These orders must be reviewed by the Supreme Court at least every 12 months. As the legislation in both of these states is relatively recent, the numbers of offenders to whom it has been applied are quite small. In Victoria, one order with very strict conditions has been made and one other is under consideration by the courts. In Queensland, two continuing detention orders, one interim detention order and five continuing supervision orders have been made.

In nearly all of the Australian jurisdictions there is provision in the general criminal law for some offenders, sometimes declared to be either dangerous or habitual, to be sentenced to indefinite prison terms. This is apparently not available in the ACT. The number of high-risk sexual offenders sentenced to indefinite terms is again relatively small, but it is difficult to be precise as other offenders, such as murderers, are commonly sentenced to life or an indefinite term. An authoritative source in the ACT estimated that there may be four cases in this jurisdiction which justify some form of special attention.

The overseas law and practice presents a significantly different picture with very high numbers of sexual offenders being subjected to some form of special treatment. In the United States, for example, 15 of the 50 states have enacted civil commitment laws which provide for the detention in prison or other institution, or community supervision, for indefinite terms. The informal evidence available suggests that the numbers of offenders so committed run into the hundreds in some states. Canada also has well over 300 sexual offenders undergoing either detention or supervision in the community, many of whom are described as post warrant expiry cases. In New Zealand, specific legislation providing for extended 4 supervision in the community for up to ten years for sexual offenders came into force in July 2004. To date a total of 32 extended supervision orders have been made by the courts. This figure may be seen as high compared with the equivalent figures in Australia.

No evidence was forthcoming from Australia or overseas on the effectiveness of either the special legislation for sex offenders or the use of indefinite sentences. Most respondents said that it was too early to have any recidivism figures, but some suggested that the fact that the legislation was used must indicate an increased level of public safety as, at the very least, those offenders in detention or under very strict supervision were not committing offences.

It is apparent from the information collected that there are two types of legislation that have been developed on this subject. The first is exemplified by Victoria and New Zealand, and the second is exemplified by Queensland, some parts of the United States and by Canada. There is also the possibility of either introducing or expanding the use of indefinite sentences for high-risk sexual offenders. On the basis of the analysis, it is suggested that there are four options that may be considered by the ACT Government. The options are not necessarily mutually exclusive. The options are: 1. No action, 2. Make provision for indefinite sentences, 3. Introduce post sentence continuing supervision, or 4. Introduce post sentence continuing detention.

It would be logically possible to support any combination of options 2, 3 and 4, but option 1 cannot be combined with any others. Also, There may be considerable variation of the details within options 2, 3 and 4., and some of these possible variations are discussed.

Following this analysis, two chapters are included which focus on the determination of high- risk sexual offending and the effectiveness of sexual offender treatment. These were prepared by a senior psychologist in ACT Corrections. Another chapter on human rights considerations was prepared by a senior officer of the ACT Department of Justice and Community Safety. These contributions to the report reflect the knowledge and points of view of two significant disciplines which are of central relevance to the subject under review.

The report concludes with a discussion of a range of issues that are relevant to the terms of reference and would require careful consideration by the Government if any of options 2 to 4 are to be pursued. Apart from the ethical issue of whether or not it is acceptable to impose restrictions on the lives of individuals on the basis of probable future behaviour, a practical matter of intense interest is the potential number of offenders who would be affected by legislation that would provide for either post-sentence continuing supervision or detention. It is suggested that the high numbers identified in the USA, Canada, and perhaps even New

5 Zealand, would not be seen as appropriate in Australia, where the numbers to date are relatively small.

Other issues discussed include the level of probability of re-offending that would be reasonable to trigger additional intervention, and the type of expertise that would be needed to establish that probability. Consideration is also given to the appropriate agency for preparing cases for submission to the courts, and the desirability of a national approach to both monitoring and supervision of former sexual offenders. The consequences of a very high level of non-reporting of sexual offences are discussed, and it is suggested that this should be the subject of further research, as well as Australian research into the question of what sorts of treatment work with what sorts of offenders.

Issues related to the managed release of information to victims, and the special problems presented by intellectually disadvantaged sexual offenders are then briefly discussed. Finally, attention is drawn to two papers which take opposing points of view, which are both strongly argued, and are included in the appendices to this report. The report concludes with the suggestion that this issue should be the subject of wide discussion in political circles in the relevant professions, and in the general public.

6 2. Introduction

The request for this project to be undertaken was first made to the writer on 12 July 2005. On that date the terms of reference were discussed and it was also made clear that the project was to be completed by 31 August 2005. The short time allowed was exacerbated by the fact that the writer had made arrangements to be overseas from 23 July until 16 August. The pressure was eased somewhat by an offer of assistance from a senior psychologist from ACT Corrective Services and a human rights lawyer from the Department of Justice and Community Safety, but it was nevertheless necessary for the writer to take a laptop computer with him overseas and prepare some of the report while away.

On 16 July, a brief report in the Canberra Times noted that the writer had been engaged for this task and that news item prompted an unexpected response from members of the public as well as from professionals. Hence, a number of expressions of interest including personal and professional points of view were received. This was all welcome, but it did reduce the time available.

Formal work on the project started almost immediately with a large number of messages, largely in the form of a request for assistance, or plea for help, being sent by the writer to personal contacts in all Australian jurisdictions and to United Kingdom, Canada and New Zealand. These messages gave an outline of the scope of the project followed by four questions as follows: 1. Is there any specific legislation in your jurisdiction which provides for high-risk offenders to be kept in detention or under supervision after the completion of the sentences imposed by the courts? 2. Are there any provisions in the general law relating to sentencing which allow for indefinite or indeterminate sentences for serious or dangerous offenders? 3. In recent years, say five years, how many offenders have been the subject of either of these forms of treatment? and 4. To the extent that it is possible to assess, can any indication be given of the success or failure of the procedures in protecting the community from high-risk offenders?

While most of the recipients of this plea for help responded in a timely and fulsome manner, regrettably some did not and it became necessary for reminder messages to be sent.

Apart from the basic information gathering described above, it soon became apparent that it would be necessary to conduct face-to-face interviews with a number of interested individuals. This was done, and included the Chief Justice of the Supreme Court, The Honourable Terry Higgins. Other individuals whose views were sought are listed in the Acknowledgements section of this report.

The writer also consulted with the ACT Sex Offender Consultative Stakeholders’ Group which included representatives of all government and non-government agencies concerned with issues related to sexual offending. A senior representative of ACT Policing was also present at this consultation. The views of the ACT Crime Prevention Committee were also sought on this subject. This is a broadly-based committee which includes representatives of ACT Policing, the Council on the Ageing, Neighbourhood Watch, Victims of Crime Assistance League, the Aboriginal Justice Advisory Committee, Families and Friends of Drug Law Reform, the Alcohol and Drug Foundation, the Ethnic Communities Consultative Council, St John’s Ambulance, and all relevant government departments. Towards the end of the inquiry a briefing was also given to the Executive members of ACT Policing.

8 3. Terms of Reference

INTRODUCTION

Offenders sentenced to terms of imprisonment for serious sexual offences may sometimes be released back into the community without supervision after serving their term of imprisonment, even when there still exists a serious threat of their re-offending. These circumstances might apply if an offender chooses not to apply for early release on parole and serves the sentence out in prison.

A similar scenario also occurs if an offender was released on parole, has come to the end of parole supervision, but the threat of re-offending is still present.

Different approaches to this problem are evolving in Australia and elsewhere. Typically the models being developed classify offenders as high-risk and that classification provides the trigger for them to be sentenced to indefinite prison terms or be released after prison only on conditional supervision orders.

In tackling this issue there are a range of factors to be considered – the human rights of the offender and the responsibility of government to protect the community, whether risk assessment models are capable of accurately forecasting risk, whether treatment for serious offenders is effective and what should the criteria be for determining that an offender is no longer, or less of, a risk.

The consultancy for Sentence and Release Options for High-Risk Sexual Offenders will: 1. Provide an overview of those sentencing and release models for serious sexual offenders in operation or development in Australia and, where relevant, elsewhere. The overview should include a brief description of the legislative and administrative framework that underpins the model, and criteria for classifying or assessing an offender’s risk for admission or exit from the program. 2. Consider how indefinite sentencing or conditional release programs might be compatible with human rights legislation as it pertains to the ACT as well as in other jurisdictions that have both indefinite or conditional release programs and human rights legislation (for example the UK, New Zealand and Canada). 3. Provide an overview of the research on the effectiveness of treatment programs for serious sexual offenders in reducing risk. 4. Considering Terms of Reference 1,2 and 3, describe the advantages and disadvantages of those sentencing and release models for serious sexual offenders that appear to have the potential to address the problem of the longer-term management of serious sexual offenders. Based on case studies in other jurisdictions, also provide an

9 estimate of the number of cases that each model might give rise to if implemented in the ACT. 5. A report covering these matters should be submitted to the Chief Executive, Department of Justice and Community Safety by 31 August 2005.

10 4. Acknowledgements

Many people assisted the writer with the preparation of this report. Of particular value was the work of Mr Richard Parker of ACT Corrective Services of the Department of Justice and Community Safety. Mr James Ryan AM, Director of ACT Corrective Services, and Mr John Paget, Director of the New Prison Project, both provided invaluable advice and information to the writer.

The Chief Justice of the ACT Supreme Court, the Honourable Terry Higgins, also provided valuable advice, as did Professor David Hambley, Chair, ACT Sentence Administration Board, Professor Seumas Miller, Director of the Centre for Applied Philosophy and Public Ethics located at the Australian National University, Ms Robyn Holder, Victims of Crime Coordinator, Mr Adam Stankevicius, Senior Manager, Policy and Governance, Department of Disability, Housing and Community Care, and Mr Andrew Whale, Manager, Strategic Projects in the same department.

The cooperation and assistance of the departmental officers who provided responses to the writer’s questions is also gratefully acknowledged, as are the helpful comments made by the participants in two group consultations.

Of greatest assistance, however, was Mrs Julie T Biles OAM, who undertook proof reading and the correction of inelegant language at all stages in the preparation of this report.

11 5. Australian Law and Practice

5.1 New South Wales There no specific legislation in New South Wales which provides for high-risk offenders to be kept in detention or under supervision after the completion of the sentences imposed by the courts, nor are there any provisions in the general law relating to sentencing which allow for indefinite or indeterminate sentences for serious or dangerous offenders. However, there are aspects of the law and practice in that state which are relevant to this inquiry. These relate to: natural life sentences, the supervision on parole, the registration by the police of named offenders, the management of forensic patients, and habitual criminals. An outline of each of these topics, as presented by the spokesperson for New South Wales, is reproduced below:

Natural life sentences Prior to 1990, an offender sentenced to life in prison did not stay in prison for life. Life sentences (and sentences, applicable to juveniles, of imprisonment ‘at the Governor’s pleasure’) were indeterminate sentences and offenders serving such sentences were released on licence by the Governor of NSW on the recommendation of the Minister for Corrective Services. However, after the former Minister, Rex Jackson, was convicted for accepting bribes for recommending that certain inmates be released on licence, the release on licence scheme (that had operated since the days of Governor Macquarie) was formally abolished and truth-in-sentencing was introduced under the Sentencing Act 1989 and the Crimes (Life Sentences) Amendment Act 1989.

Inmates who are serving pre-1990 life sentences can apply to the Supreme Court for a re- determination of their sentences. From January 1990, when the Crimes (Life Sentences) Amendment Act 1989 commenced, any offender who is sentenced to life is sentenced to remain in prison until he or she dies. In other words, a life sentence is now a sentence for the term of a person’s natural life. As of 1 August 2005, there were 38 natural life inmates in the NSW correctional system.

Supervision of offenders on parole Clause 216 of the Crimes (Administration of Sentences) Regulation 2001 provides:

(1) A condition of a parole order may require the offender to be subject to supervision for up to 3 years from the date on which the offender is released in accordance with the order. (2) In the case of a serious offender, the Parole Board may while the parole order is in force extend the period of supervision by, or impose a further period of supervision of, up to 3 years at a time. (2A) Nothing in this clause enables the Parole Board to extend the period of supervision beyond the expiry date of the sentence. 12 (2B) The amendment made to subclause (2) by the Crimes (Administration of Sentences) Amendment (Miscellaneous) Regulation 2004 extends to a parole order in force as at the commencement of that Regulation. (3) For the purposes of section 128 (3) of the Act, the prescribed supervision is supervision by a probation and parole officer.

The practical effect of clause 216 is that the Parole Order of an offender released to parole stipulates supervision for the parole period of the sentence or for three years, whichever is the lesser. Where the parole period is greater than three years, supervision may be extended by the Parole Board for periods up to 3 years at a time. It can be expected that the parole period will exceed 3 years for most sentences of twelve years or more, and many sentences of less than twelve years.

Registration of certain persons on the Register of Offenders The Child Protection (Offenders Registration) Act 2000 requires offenders convicted of certain crimes against children (registrable offenders), whether in New South Wales or elsewhere, to notify the Commissioner of Police of certain relevant personal information pertaining to them, so that the Commissioner can maintain a Register of Offenders under the Act. The obligation extends for between 8 years and life, depending on the offence(s); and the information must be given in person.

The relevant personal information includes the offender’s name, aliases, date of birth, residential address (or, if the person does not generally reside at any particular premises, “the name of each of the localities in which the person can generally be found”), nature of employment, employer’s name, employment address(es), the make, model, colour and registration details of any motor vehicle owned or driven by the person, and offence details including court of conviction and date of conviction. The maximum penalty for failing to comply with reporting obligations is imprisonment for 2 years, or a fine of 100 penalty units, or both.

A registrable offender is required to register with Police upon release from custody. For an offender on parole, there will be a period when parole supervision and registration overlap; however the supervision of the Probation and Parole Service in this time is based on the offender’s parole conditions rather than the reporting obligation. Nevertheless, liaison occurs between the Probation and Parole Service and NSW Police when a supervised person is also a registrable person.

The Register of Offenders is maintained by the Commissioner of Police, on a secure part of the Police computer system. The Department of Corrective Services has no role in the supervision of offenders on the Register of Offenders beyond the completion of their parole period. Consequently, any supervision or surveillance by Police is based on crime prevention

13 or detection, rather than rehabilitation of the offender. By contrast, parole supervision emphasises offender rehabilitation and relapse prevention over crime detection.

The Minister for Police, in his Second Reading Speech on the Child Protection (Offenders Registration Bill 2000), said: “The bill … will increase, and improve, the accuracy of police child sex offender intelligence; assist in the investigation and prosecution of child sex offences committed by recidivist offenders, provide a deterrent to re-offending; assist police from New South Wales and other jurisdictions in monitoring high risk child sex offenders; assist in the management of child sex offenders in the community; provide child abuse victims and their families with an increased sense of security; and assist police to enforce the Child Protection (Prohibited Employment) Act 1998 and the Crimes Legislation Amendment (Child Sexual Offences) Act 1988.”

Management of forensic patients Chapter 5 of the Mental Health Act 1990 deals with forensic patients. The Mental Health (Criminal Procedure) Act 1990 deals with the trial procedure for persons suffering mental illness, though not their long-term indefinite or indeterminate detention.

The Mental Health Act 1990 provides for the regular review of the detention of forensic patients. Accordingly, such detention is not indefinite or indeterminate in the sense that it will never be lifted. On the other hand, if a person’s mental condition never changes, the person may be detained for a set period, and reviewed after a set period, with the result that the person is detained indefinitely.

Habitual criminals. The Habitual Criminals Act 1957 is on the statute books but is hardly ever used (if at all). Under this Act, declaration as an habitual criminal is made by a judge at time of sentencing, based on an offender’s prior incarceration record. It is not referable to an offender’s rehabilitation efforts while imprisoned or propensity for recidivism. If a judge declares a person to be an habitual criminal, the judge must sentence the person to imprisonment for between 5 and 14 years, to be served concurrently with any other sentence.

The wide ambit of the Act means that a huge proportion of offenders could be declared habitual criminals. However, the mandatory nature of the sentence of imprisonment to be imposed upon an habitual criminal, the lack of discretion provided to judges, the arbitrary nature of a declaration under the Act, and the Government’s opposition to mandatory sentencing on public policy grounds, provide the basis for its non-use – quite apart from the resources required to implement mandatory imprisonment of habitual offenders.

The Act also provides the Governor with the power to grant a licence to an habitual offender to be at large for such period as endorsed on the licence. As noted above, the NSW Government has abandoned the system of release on licence in favour of determinate parole.

5.2. Victoria The following information was made available to the writer by Mr James Ryan, Director of ACT Corrective Services. It was prepared by a member of his staff, Ms Helen Child.

“The Serious Sex Offender Monitoring Act (SSOMA) commenced on 26 May 2005. The purpose of this Act is to ensure protection for the community and to provide supervision for sex offenders in the Community when any community supervision period, for example parole, has expired. An order can be made for up to 15 years by a Court on the application of the Secretary of the Department of Justice. The application will go to the Court that sentenced the offender, for example, the County or Supreme Court.

“It is not retrospective, in that applications can only be made for current prisoners or parolees.

“The offenders will be subject to the following requirements: • a requirement that the offender must not commit, whether in or outside Victoria, another relevant offence; • a requirement that the offender attends at any place as directed by the Secretary or the Adult Parole Board for the purpose of supervision, assessment or monitoring; • a requirement that the offender reports to and/or receives visits from the Secretary and any person nominated by him or her for the purpose of monitoring the order; • a requirement that the offender notifies the Secretary of any proposed change of his or her name or employment at least two clear working days before the change occurs; • a requirement that the offender must not move to a new address without the prior written consent of the Secretary; • a requirement that the offender does not leave Victoria without the permission of the Secretary granted either generally or in relation to the particular case; • a requirement that the offender comply with any lawful instructions and directions given to him or her by the Secretary; and • a requirement that the offender comply with any lawful instructions or directions given by the Adult Parole Board. These instructions and directions may be made about any matters that the Adult Parole Board thinks are necessary to ensure adequate protection of the community or for the offender's treatment, care and rehabilitation or the monitoring of the offender.

“The Adult Parole Board will be able to give the offender directions and instructions that may include but are not limited to matters such as: 15 • where the offender is to reside; • setting curfews; • specifying that the offender must not visit specified places or may only visit at specified times; • requiring the offender to attend and participate in treatment or rehabilitation programs or activities; • prohibiting the offender from engaging in certain types of employment; • prohibiting the offender from engaging in certain community activities such as volunteer activities where children may be present; • prohibiting the offender from having contact with certain persons or classes of persons. This could include, for example, children of neighbours or children under the age of 10; and • requiring the offender to adhere to electronic or other forms of monitoring of his or her compliance with the order relating to his or her whereabouts.

“There are currently two applications pending which have yet to be determined. There is an appeal process which goes to the Court of Appeal.

“The indefinite sentencing provision in the Sentencing Act means that the sentencing Court is not able to set a non parole period, but instead sets an indefinite sentence.”

It should be noted that this legislation provides for continuing supervision in the community, but it does not provide for continuing detention in prison or other custodial setting. However, recent newspaper reports from Victoria indicate that in at least one case the supervision requirements (which included the wearing of an electronic surveillance device and a requirement for the person to be in the company of a community corrections officer whenever away from the designated place of residence) were not much less restrictive than would be case in full-time custody.

Since the information provided by Mr Ryan was received, the Victorian Commissioner for Corrections has provided more details to the writer. This more recent advice largely confirms the facts given above, but adds that currently there is one offender serving a 15 year term of supervision and one other case is still before the courts. The advice also provides details of the use of indefinite sentences in Victoria. Under Section 18 of the Sentencing Act 1991 the higher courts may impose indefinite sentences on serious offenders over the age of 21. The Commissioner says:

An indefinite sentence can be imposed on the court's own initiative, or upon application made by the Director of Public Prosecutions.

The court can only impose an indefinite sentence if it is satisfied, to a high degree of 16 probability, that the offender is a serious danger to the community because of: • his or her character, past history, age, health or mental condition; • the nature and gravity of the serious offence; and • any special circumstances.

If the court imposes an indefinite sentence, the offender is not eligible for parole and the court cannot fix a non-parole period. Rather, the court must specify a nominal sentence equivalent to the non-parole period it would have otherwise imposed. The court must review the indefinite sentence once the offender has served the nominal sentence to determine whether the indefinite sentence remains necessary, and must then review the sentence at least every three years.

On a review of an indefinite sentence, the court must discharge the indefinite sentence unless it is satisfied that the offender is still a serious danger to the community. If the court discharges the indefinite sentence, the offender becomes subject to a five year reintegration program. This re-integration program is administered by the Adult Parole Board. An offender subject to a reintegration program remains under sentence similarly to an offender on parole, and the Adult Parole Board has the same supervision powers in relation to the person as it has in relation to a parolee.

An offender can appeal against the making of an indefinite sentence or a decision of the court not to discharge an indefinite sentence on review.

The Commissioner has also said that four prisoners to date have received indefinite sentences, one of which was amended to a fixed sentence on appeal. All four had committed sexual offences and had previously been sentenced to imprisonment for sexual offences prior to receiving an indefinite sentence. There are currently three offenders serving indefinite sentences in Victoria, and this is assumed to enhance community safety.

5.3. Queensland Together with Victoria, Queensland is one of the two Australian jurisdictions of particular relevance to this inquiry. In 2003 the Queensland parliament passed the Dangerous Prisoners (Sexual Offenders) Act which specifically aims to provide a high level of community protection from the type of offender who is of central concern in this report. Under this legislation the Queensland Attorney-General may apply to the Supreme Court for a continuing detention order to be imposed on a prisoner considered to impose an unacceptable risk of re-offending after release from prison. The Supreme Court may impose an interim detention order while considering the Attorney-General’s application. Such an order may be imposed even if the original sentence imposed by the court has been served in full, but the order must be reviewed by the Supreme Court at least every 12 months. Under this legislation the Supreme Court may alternatively impose an order for continuing supervision in the community on an offender who has completed the term of parole required by the original sentence.

(This legislation was challenged by a prisoner as being unconstitutional, but the High Court rejected that challenge. An article in the Deakin Law Review in 2004 by Anthony Gray under

17 the title “Detaining Future Dangerous Offenders: Dangerous Law” argued strongly for the Queensland legislation to be declared unconstitutional. This article was written before the High Court decision was known, but because of its central relevance to this inquiry a copy is reproduced as Appendix B to this report.)

The Director-General of the Department of Corrective Services has informed the writer that the purpose of the Dangerous Prisoners (Sexual Offenders) Act 2003 is to ensure the adequate protection of the community and to provide continuing control, care or treatment of dangerous sex offenders to facilitate their rehabilitation, where possible. The legislation was enacted in response to growing community concerns about the release of convicted sex offenders, not only because of the abhorrent nature of these offences but because of the lack of evidence that some offenders have been rehabilitated after refusing to participate in sexual offender treatment programs. Such offenders were previously released into the community without supervision at the conclusion of their sentences.

With regard to indefinite or indeterminate sentences, Section 163 of the Penalties and Sentences Act 1992 provides a court with the discretion to order the indefinite detention of an offender convicted of a violent offence if the court is satisfied that the offender is a serious danger to the community. Such a sentence can only be imposed at the time the offender is sentenced. However, Section 18 of the Criminal Law Amendment Act 1945 provides for the indefinite or continuing detention of convicted sexual offenders who are in custody. Under this provision, the Attorney-General may apply to the Supreme Court for a declaration that an offender who is serving a sentence for a sexual offence is incapable of exercising proper control of his or her sexual instincts and a direction that the offender be detained at the expiry of the term of imprisonment.

On the question of numbers, there are currently two offenders subject to continuing detention orders, one on an interim detention order, and five on supervision orders under the Dangerous Prisoners (Sexual Offenders) Act 2003. There are also 13 offenders subject to indefinite or indeterminate sentence orders.

5.4. Western Australia There is currently no specific legislation in Western Australia which provides for high-risk offenders to be kept in detention or under supervision after the completion of the sentences imposed by the courts, There is provision, however, for some offenders to be sentenced to ‘life’ or ‘indefinite’ sentences. There is also provision for an accused person to be found mentally unfit to stand trial or not guilty on account of unsoundness of mind, in which case the person could be held indefinitely on a custody order. Apart from these provisions, the only way an offender in Western Australia could remain incarcerated after the completion of the sentence would be for him or her to be remanded in custody on further charges.

18 Pursuant to the Western Australian Sentencing Act 1995, life imprisonment or strict security life imprisonment may be imposed for murder or wilful murder. This provision is not directly relevant to this enquiry, but of greater possible relevance, as it could apply to high-risk sexual offenders, is the provision that under certain circumstances, an indefinite sentence may be imposed following conviction for other indictable offences. Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that, when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society. A prisoner sentenced to indefinite imprisonment may be released at any time by means of a parole order made by the Governor under section 27 of the Sentence Administration Act 2003.

Offenders found to be unfit to stand trial or not guilty on account of unsoundness of mind may be subject to a custody order pursuant to the Criminal Law (Mentally Impaired Accused) Act 1996. A person under this Act is to be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board, until released by the Governor.

Even though in the past five years, some 60 persons have been sentenced to life or indefinite terms, it has not been possible at this time to ascertain how many, if any, were sexual offenders. There are therefore no data available from Western Australia on the effectiveness of indefinite sentences that may have been imposed on high-risk sexual offenders.

5.5. South Australia Like most other Australian jurisdictions South Australia has no specific legislation which allows the courts or any other authority to order the continued incarceration or supervision of high-risk offenders beyond the expiration of their sentences. However, Section 23 of the Criminal Law (Sentencing) Act 1988 permits the Supreme Court to order a convicted sex offender to be detained indefinitely, if two or more medical practitioners independently form the opinion and report to the court that the person is incapable of controlling his or her sexual instincts'. Section 24 provides for conditional release on licence, after a sentence of indeterminate duration under section 23.

The Statutes Amendment (Sentencing of Sex Offenders) Act 2005 amends section 23 so that a term of indefinite detention may be ordered by the court if each of two psychiatrists forms an opinion that a convicted offender is either incapable of controlling, or unwilling to control, his sexual instincts, and deals explicitly with the case in which the offender refuses to cooperate with the assessment required by the court.

In addition, the 2005 Act amends the provisions so that an order may be sought on application by the Attorney-General for the indefinite detention of an offender under these provisions at any time while the person remains in prison serving a sentence of

19 imprisonment. The application and order need not be made at sentence but may be made at any time during the actual incarceration of the offender.

Section 32 (6) of the Criminal Law (Sentencing) Act 1988 allows the Director of Public Prosecutions or the presiding member of the Parole Board or the Training Centre Review Board (as the case may require) to apply to the sentencing court for an order extending a non- parole period fixed in respect of the sentence, or sentences, of a prisoner.

The Criminal Law (Sentencing) (Serious Repeat Offenders) Amendment Act 2003 amended the Criminal Law (Sentencing) Act 1988 to provide that a sentencing court can make a declaration that an offender is a serious repeat offender. (new sections 20A and 20B). The reason for the declaration is that it is appropriate to do so for protection of the public. The court is not compelled to invoke it only because the threshold is reached. The effects of the declaration are that (a) the court is empowered to impose a sentence for the protection of the public that is more than proportional to the seriousness of the offence actually the subject of the sentence and (b) any non-parole period fixed for the sentence must be at least 80 per cent of the length of the sentence. The Statutes Amendment (Sentencing of Sex Offenders) Act 2005 also provides an option to declare an offender a serious repeat offender to be available to the court if the offender is convicted of two child sex offences (rather than three).

On the question of numbers, records of the Department of Public Prosecutions show three applications under section 23 were made before March 2002 and 13 after that date. Of the 13, four were successful, four are pending, two were withdrawn and three were dismissed. The terms of detention for each are identical and required by statute. The detention is indeterminate. One person is being held under an order made many years ago under what was then section 77a of the Criminal Law Consolidation Act. In this case the offender was initially released on licence and that his order for detention was due to expire on 23 February 2003. However, an application was made and granted that the order not be discharged, and it was further extended for three years from 24 January 2003.

No review of the legislation has been undertaken and it is therefore difficult to determine success or failure. However, the mere fact that the courts have deemed it necessary to detain four people under the legislation, are considering a further four and have extended one of the four detained to 2006, would indicate that the legislation has had an effect.

5.6. Tasmania The legislation in Tasmania, as in some other Australian jurisdictions, allows an offender to be declared a “dangerous offender’ at the time of original sentencing, which could mean that he or she would be detained indefinitely. An offender who is so declared may not be released from custody, even on parole, until that declaration is discharged or removed. (It is not clear who, or under what authority, a declaration may be discharged.) It has been suggested, however, that the Parole Board has “done deals” which effectively allow earlier release for extended periods of supervision, but not for an indefinite period. Such a deal may extend parole supervision for a few months beyond the latest release date. 20

There has not been a declaration of “dangerous offender” status in Tasmania in recent years and the only persons currently serving indefinite sentences are either lifers convicted of murder or persons found unfit to plead by reason of mental illness.

It is relevant to note that Tasmania is currently considering legislation which would require sex offenders to register which may impose some reporting requirements, without imposing restrictions on movement or requirements to accept treatment.

5.7. Northern Territory In the Northern Territory there are currently no provisions for high-risk offenders to be kept in detention or under supervision beyond their sentence completion dates. There are provisions, however, for life sentences, custodial supervision orders and habitual offender penalties to be imposed by the courts for homicide, serious sexual offences and serious drug offences. In the past five years three custodial supervision orders have been imposed and there has been one habitual offender declaration. It is not clear from the information provided, however, if any of these four cases were serious sexual offenders, nor is there any information available on the effectiveness of these orders or penalties in terms of re- offending.

21 6. Overseas Law and Practice

6.1. United Kingdom Unfortunately, no formal response was received from requests for information that were sent to a number of different people in the United Kingdom, and therefore other sources of information were explored. A search on the internet found considerable relevant information in the web site of the Home Office, including some details of the new Sexual Offences Act 2003. The main provisions of this Act; as taken from the web site, are summarised in the paragraphs below.

“Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. A responsibility rests on the Government adequately to protect everyone in society from such crimes, especially those who are particularly vulnerable to abuse, such as children and persons with a mental disorder. It is believed that the new framework of sexual offences, notification requirements and orders provided for in this Act will give just such protection.

“Part 1 of Sexual Offences Act is a major piece of law reform: • Modernising 19th century offences • Removing discrimination against homosexuals from the law • Plugging loopholes

“The new measures are designed to: • Help close the justice gap – for example, only 7% of reported rapes lead to a conviction - our new proposals on consent target this; • Give confidence in the CJS by making the law fair and putting victims first; and to • Give the police up to date criminal offences as tools to do their job

“Our new offences will help protect the public: • Especially those groups whom we know have been targeted for abuse such as children and people with learning disabilities; • In responding to new challenges posed by 21st century technology; and by • Strengthening measures to combat the sexual exploitation and trafficking of children

“Part 2 of the Act deals with sex offenders: 22 • Addressing the fear of sexual crime and paedophiles in particular; • Strengthening the sex offenders register; and by introducing • New orders to help police manage sex offenders living in the community and to protect children from sexual harm.

“Sections 1, 2, 3, and 4 provide for the non-consensual sex offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. They should be read together with Sections 73 to 79.

“Issues surrounding consent are central to establishing whether a sexual offence has taken place. It is therefore vital that the law is crystal clear about what consent means and that it sets out circumstances in which sexual activity is simply not acceptable. This will provide juries with a very clear framework within which to make fair and just decisions.

“The Act for the first time contains a definition of consent at section 74 as “a person consents if he agrees by choice and has the freedom and capacity to make that choice”, making clear that submission is not consent.

“Under existing law, where a defendant is found to have an honest belief in the consent of the complainant, then even if such a belief is unreasonable, he must be found not guilty. It is believed that that is wrong and must be corrected.

“The Act introduces a test of reasonableness into the law on consent. Where the prosecution can establish that sexual activity has taken place, that the complainant did not consent to it and that the defendant did not reasonably believe that the complainant consented, the offence will be made out. All this will be for the prosecution to prove. The defendant remains innocent until proved guilty beyond reasonable doubt.

“We also believe that the law should set out a list of circumstances in which various presumptions will be made as to the complainant's consent and the defendant's reasonable belief in consent. This is done in Section 75. These are circumstances in which it is most unlikely that consent was freely given, such as where the complainant was unconscious or asleep. Should the prosecution prove that sexual activity took place in one of these circumstances and that the defendant knew that the circumstances existed, there will be a presumption that the complainant did not consent, and that the defendant did not reasonably believe that the other party consented to the sexual activity.

“A package of measures give children under 13 the greatest possible protection under the law from sexual abuse. Sections 5, 6, 7 and 8 provide for a number of offences specifically designed to protect children under 13. They make clear that sexual activity with a child under 13 is never acceptable. These offences therefore carry correspondingly high maximum penalties. 23

“Sections 9 to 15 deal with the child sex offences that involve ostensibly consensual sexual activity with children aged 13 to 15. We have been very careful to ensure that the law covers all the sexual activity we want criminalised. We have, for example, plugged the loophole discovered last year where a man persuaded two children to strip naked in front of him without committing an offence. These offences will criminalise both direct physical sexual activity and activity where no contact is made, such as forcing a child to watch a sexual act. Where no physical contact takes place, the maximum penalty available will be 10 years' imprisonment. The most serious behaviour involving direct physical contact will carry a maximum penalty of 14 years' imprisonment.

“Some people have expressed concern that by keeping the current prohibition on underage sex in place, young people engaging in normal experimental and consensual sexual behaviour could be caught up by the law and branded as criminals.

“We are sympathetic to these concerns but the current blanket ban on sexual activity involving children under 16 is for their own protection. While it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the two parties is significant, for example between a 15 year old child and a 40 year old adult, the bottom line is that adults do not have a monopoly on child abuse – we cannot assume that sexual relationships between young people will be fully consensual just because they are the same age. We know that children who suffer abuse often do so at the hands of other children or adolescents and the law must be able to protect them.

“However, we accept that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and in many instances no harm comes from it. It is therefore important that we ensure that these children do not end up being prosecuted or issued with a reprimand or final warning and we will introduce additional safeguards in guidance to ensure this is not the case. The guidance will make clear that there should be no criminal justice intervention if the sexual activity involves children of similar age and there is no evidence of coercion or corruption.

“This is a difficult and sensitive area. We believe we have struck the right and sensible balance between acknowledging consensual sexual activity may take place between children under the age of 16 while at the same time protecting all our children from sexual abuse.

“The Internet has opened up new possibilities for children both for learning and leisure. However, we need to ensure that we tackle those who want to use it to take advantage of the innocence of children. Following the recommendations of the Task Force on Child Protection on the Internet, we are creating a new offence to tackle the grooming of children both on- and off-line. The offence of meeting a child following sexual grooming etc. in Section 15 will

24 catch adults who undertake a course of conduct with a child leading to a meeting where the adult intends to sexually abuse that child either at that meeting or on a subsequent occasion.

“Sections 16 to 24 re-enact, amend and extend the offence of abuse of a position of trust. The Sections make it an offence for a person aged 18 or over to involve a child under that age in sexual activity where he is in a specified position of trust in relation to that child, for example where an adult looks after a child in a children's home.

“Most child abuse takes place in the home. The balance of power within the family, and the close and trusting relationships that exist, make children particularly vulnerable within its environment. We must do all we can to prevent children from being abused by those who are supposed to love and care for them. The familial child sex offences dealt with in Sections 25 to 29 recognise that the modern family unit is often complex. We have therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or "common law" partnerships.

“Sections 64 to 65 cover sex between adult relatives and the relationships covered by these offences are far narrower in scope than for the familial child sex offences.

“The sexual offences review heard very disturbing evidence about the extent and nature of the sexual abuse of people with a mental disorder, including those with a learning disability. It has been estimated, for example, that such people are four times more likely to suffer sexual abuse as those who do not have such a disorder. Existing legislation has offered inadequate redress when such people are sexually abused. It is essential the Act remedies this, while recognising the rights of people with disabilities to a full life, including a sexual life. To this end we are creating three new categories of offences to protect people with a mental disorder. These are provided for in Sections 30 to 44.

“Section 30 to 33 cover offences committed against those who because of a very profound mental disorder lack the capacity to consent to sexual activity. Sections 34 to 37 cover sexual activity with a person with a mental disorder, whether or not they have the capacity to consent, by inducement, threat or deception. Whilst the overwhelming majority of those in the care professions act compassionately and responsibly towards those in their care, it is clear that some unscrupulous individuals have taken advantage of their position to sexually abuse those in their care. Sections 38 to 44 make it an offence for those engaged in providing care, assistance or services to someone in connection with a mental disorder to engage in sexual activity with that person, whether or not that person has the capacity to consent.

25 “Sexual exploitation in all its forms is despicable, but the sexual exploitation of children is particularly abhorrent. This Act brings more coherence and higher penalties to the criminal law surrounding child prostitution, child pornography and trafficking.

“This is covered in sections 45 to 60. Our new offences will protect all children up to the age of 18 from prostitution and pornography. The new offence of paying for sex with a child will for the first time criminalise the buyer specifically in an attempt to tackle demand. With the exception of this offence, there is no requirement for the offence to be committed for gain.

“The Act creates new offences at Sections 52 to 54, relating to causing, inciting or controlling the prostitution of adults for gain.

“The existing trafficking offences have been broadened to cover trafficking for the purpose of committing any sexual offence against the adult or child victim as well as trafficking from one place to another within the UK.

“Section 45 extends the Protection of Children Act 1978 (the 1978 Act) to cover indecent photographs of children aged 16 and 17, with an exception for situations where a couple take and possess such images of each other within the context of an enduring family relationship. This will bring us in to line with other countries legislation, and protects all children up to that age from the circulation of indecent photographs of them, particularly on the internet.

“Section 46 provides a defence to a charge of “making” under the 1978 Act to ensure that reporting and investigation of indecent photographs of children is not hindered by fear of prosecution.

“Sections 61-63 provide for preparatory offences, such as administering a substance with intent to commit a sex offence, for example, administering the so-called date-rape drugs. There is also an offence of trespassing with intent to commit a sex offence and of committing an offence with intent to commit a sexual offence. The latter offence is broadly defined but can cover, for example, abduction with intent to rape.

“Sections 66 to 71 provide for a number of other offences: sexual activity in a lavatory, indecent exposure, voyeurism, intercourse with an animal and sexual penetration of a corpse.

“Sections 80 to 93 re-enact, with amendments, Part I of the Sex Offenders Act 1997, which established the obligation on a sex offender to notify their name and address and any changes to those details with the police. That process is commonly known as registration. Having the information is invaluable to the police in two ways. First, it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, as the police will immediately know of the whereabouts of any number of potential suspects.

26 “The most important changes to the notification requirements are: reducing the period within which a sex offender must notify the police of a change of details from 14 to 3 days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to 7 days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification.

“However, the current requirements apply only to those convicted of offences in the United Kingdom. It is important that we can keep track of all known sex offenders who are in this country, whether they have been convicted of an offence here or abroad. We have therefore introduced a new notification order found in Sections 97 to 103 to make those convicted of sex offences abroad, whether they are British citizens or foreign nationals, subject to the same notification requirements if they come to the United Kingdom.

“Additional protection will be offered by sexual offences prevention orders in Sections 104 to 113, which combine existing sex offender orders and restraining orders, and will allow for whatever prohibitions on an offender are necessary to protect the public. For example, an offender could be prohibited from entering children's playgrounds or visiting swimming baths. Those orders will be available in respect of persons convicted of violent offences and who present a sexual risk, as well as those convicted of sexual offences. Breach of one of those orders will be punishable by a maximum penalty of five years imprisonment.

“Sections 114-122 introduce a new foreign travel order banning those who have been convicted of a sex offence against a child under 16 from travelling abroad in certain circumstances. An order, if granted, can ban an offender from travelling to a specific country (or countries), anywhere in the world or anywhere in the world except a specified country or, where the risk warrants it, from travelling abroad at all.

“The new risk of sexual harm order, provided for in Sections 123 to 129, will be used to prevent harm to children from sexually explicit communication or conduct where the adult has already engaged in such behaviour towards a child. This order could be used, for example, to stop an adult sending a child adult pornography or indecent text messages by mobile phone.”

6.2. Canada A detailed response was received from the Federal Correctional Services of Canada. The information presented below is a summary of that response.

27 The Government of Canada, in cooperation with the provinces and territories, has developed legislation and tools to ensure public safety when a high risk offender is released. Among these developments are: • “peace bonds” imposing strict conditions on individuals in the community, regardless of previous convictions, • Long-term offender legislation, • DNA databank, and • A national sex offender registry.

The first two of these developments may be seen to be of particular interest to this inquiry.

Peace Bonds Under Section 810 of the Criminal Code of Canada, the police or a provincial crown attorney may apply to a provincial court to order an individual to “keep the peace” regardless of whether or not the individual has been convicted of any offence. This option was first provided in 1892 and aimed to deter property offenders, but in recent years it has been considerably strengthened and focussed on sexual offences against children and serious personal injury offences. If a court grants such an order, the individual is bound to comply with specific conditions felt reasonable in the circumstances to protect named individuals or the general public. Such conditions generally include: regular reporting to police or correctional authorities; weapon prohibitions; close monitoring of the individual and prohibitions against being within a specified distance of any particular type of place, such as schools. The conditions may also include electronic surveillance and curfews. Once granted a peace bond is in effect for up to 12 months and may be renewed by the court on application from the police.

This procedure may also be initiated by Correctional Service Canada in cases where it is believed that a prisoner or parolee will pose a significant threat to the community after the completion of the sentence. In such cases a comprehensive information package, including psychological and/or psychiatric evaluations, is prepared 90 days before the warrant expiry date of the individual. The information package is forwarded to the police (presumably in association with a crown attorney) who will decide whether or not to apply to the court for a peace bond. A peace bond ordered in such circumstances does not apparently provide for continuing detention, but failure to comply with the conditions of the order is itself a criminal offence which could result in a sentence of imprisonment.

Long-term Offender Designation This designation of an individual as a long-term offender was created in 1997 and primarily targets sexual offenders. The consequences of such a designation can be more serious than those resulting from a peace bond, as a long-term offender could be placed under supervision in the community of up to 10 years after a sentence has been completed A court may make a

28 long-term supervision order if it is satisfied that “there is a substantial risk that the offender will re-offend, and, there is a reasonable possibility of eventual control of the risk in the community.”

The courts in Canada may also designate an individual as a dangerous offender, in which case an indeterminate sentence may be imposed. Similar to ‘life’ sentences, persons designated as dangerous offenders may be held in prison and retained under supervision in the community for the whole of their lives.

As at 26 July 2005, there were 318 offenders with long-term supervision orders in Canada. Of these, 191 were incarcerated and 127 under supervision in the community. Of the 127 in the community, 103 were post-warrant expiry date cases. In other words, these were offenders who had completed the sentences originally imposed by the courts. and the majority were the result of sexual offences.

The spokesperson for the Correctional Service of Canada indicated that while there is extensive information on the recidivism rate by sexual offenders in Canada, there is as yet no official data released on the long term effectiveness of the long-term and dangerous offender legislation. It was also pointed out that the legislation covering these cases was relatively new and that the number of these cases released to the community was relatively low.

It may be observed that the Canadian approach to the management of high-risk sexual offenders has been largely a matter of adapting pre-existing legal mechanisms rather than introducing totally new approaches, but the result seems to have been relatively large numbers of offenders being subjected to extended periods of detention or supervision. It also may be noted that the police, rather than corrective services, seem to play a central role, especially with regard to peace bonds.

29 6.3. New Zealand Two pieces of legislation passed in New Zealand in 2004 are particularly relevant to this inquiry. These are the Parole (Extended Supervision) Amendment Act and the Sentencing Amendment Act which amended respectively the Parole Act 2002 and the Sentencing Act 2002. Under this new legislation the Department of Corrections can apply for, and the Court may approve, an extended supervision order on a person who has been: • convicted of a sexual offence against a person under the age of 16 years and sentenced to a finite term of imprisonment, and • assessed as having a real and ongoing risk of further sexual offences against persons under 16 years of age. • These sexual offences include: o specific sexual offences involving victims under 16 years, o pornography offences involving persons under 16 years, and o exploitative sexual offences against a person with a significant impairment.

Such people are eligible whether they are currently in prison or are in the community and subject to parole or release conditions.

There is no provision in the Parole (Extended Supervision) Amendment Act 2004 for continuing detention to be ordered for persons who have completed their prison sentences, but there is provision under the Sentencing Act 2002 for preventive detention to be imposed on repeat sexual and violent offenders who are over the age of 21 years and have been convicted for sexual violation. No information is available on the use that may have been made of this provision.

Since the Extended Supervision legislation came into force in July 2004, 32 orders have been granted by the courts. Twenty-two of these Orders have actually commenced. Nineteen of these offenders are currently being managed on Extended Supervision. Three ESOs are currently suspended due to the offenders being re-imprisoned or held in custody for further offences, none of which are sexual offences against children. Extended Supervision Orders can be imposed for a maximum of 10 years. Twenty-five of the orders granted thus far are for 10 years, with the rest ranging from two to eight and a half years.

The spokesperson for the New Zealand Department of Corrections has indicated that it is too early to make any judgement as to the effectiveness of the 2004 legislation.

30 6.4. United States It was not originally intended to include the United States in this review as it would have been impossible in the brief time available to obtain comprehensive information from a significant number of the American states. However, Mr Richard Parker, Principal Psychologist with the Offender Intervention Programs Unit of ACT Corrective Services has provided the writer with copies of the extensive correspondence which he had exchanged with psychologists and sex offender therapists in a number of American jurisdictions. Even though the information in this correspondence is relatively informal, it is of interest and relevance for a number of reasons.

In the first place this information illustrates how politically “hot” in the United States is the question of what should be done to protect the community from (people they tend to label as) “sexually violent predators” or “sexual psychopaths”. Even the labelling is a matter of wide debate as some of the experts argue that inappropriate labels can worsen the problem by making those who are labelled more resistant to participating in sex offender treatment programs.

Furthermore, it is suggested that use of terms like “sexual psychopath” leads to an extreme reluctance on the part of mid-level state employees, including psychiatrists, to ever recommend that an offender so labelled is an acceptable risk for release into the community. To make such a recommendation is seen as putting one’s career at risk as inevitably some released offenders in this category will re-offend.

In the jurisdictions which are mentioned in Mr Parker’s correspondence (New Jersey, Ohio, Texas and Minnesota) there seems to be wide political support for the provision of special legislation to deal with high-risk sexual offenders, but there is no consensus on the form that legislation should take. In New Jersey, for example, a special facility within the state prison system has been established for sexually violent predators and this is claimed to be “bursting at the seams” with a number of the prisoners/patients having to be double-bunked. There is also a predictable problem of the location of this type of facility as no community wants it to be in their neighbourhood.

An alternative model, known as the Texas model, allows high-risk sex offenders to return to the community, but establishes a “cocoon of supervision” with very tight monitoring, specially trained parole officers, and experienced therapists (who are given limited immunity from lawsuits to treat these cases). It is claimed that this model is much more cost-effective than full-time custodial treatment, and it also provides a framework for trying to reintegrate these offenders back into the community.

The correspondence suggests that Ohio is considering the introduction of post-release civil commitment similar to the model which has been in use in Minnesota since 1991. The 31 Minnesota model is seen as having both advantages and disadvantages. There is clearly an advantage in providing continuing confinement for those sex offenders who are classified by appropriate experts as being extremely dangerous and highly likely to re-offend, but their management in the prison system is challenging, especially if the provision of professional treatment programs is not always guaranteed.

A major disadvantage of the Minnesota model is that it is very expensive compared with mainstream incarceration, and, of even greater concern, the model seems to attract extraordinarily high numbers. It costs approximately $100,000 per year to house a civilly committed sex offender in Minnesota, and in January 2004 there were 200 such offenders, costing $20 million per year. In May 2005, the number had increased to 300, representing a cost of $30 million per year. (These figures are to be contrasted with mainstream imprisonment in Minnesota which cost about $70 per day, or approximately $25,000 per year per offender.) It should be noted that these mainstream figures are high by American standards, but low when compared with Australia.

An additional problem, which may not be unique to Minnesota, is that at least one sex offender treatment therapist reports that approximately 96 per cent of the prisoners in this category either refuse to participate in treatment programs or they start in the programs but withdraw after a short time. Furthermore, some of them are defiantly non-conformist and are proud to be members of what they call a “3 - 8 club”, a group of offenders who have been convicted of offences involving sexual relations with girls between the ages of three and eight years. (This club could be seen as illustrating one of the little-understood facts about paedophilia, which is that many paedophiles are not in the slightest remorseful about their past behaviour, but are in fact boastful of their sexual conquests. This frame of mind leads to participation in paedophile rings in which information, pictures and contact details are exchanged.)

It is also worthy of note that, as might be expected, there is vigourous debate in several American jurisdictions about the ethics of civil commitment. Some people have argued that civil commitment of sex offenders after they have served the sentences imposed upon them is a case of double jeopardy and must be seen as preventive detention, which it obviously is. Even more tellingly, some have argued that the risk assessment methods that are applied are not sufficiently accurate to justify a procedure which could result in lifetime confinement.

It might be observed that, compared with the United States, the legal and political debate about high-risk sex offenders is relatively benign and low-key in Australia.

For a more comprehensive and scholarly analysis of the law and practice for the civil commitment of sexual offenders in the United States reference is made to the book by Dennis M Doran, “Evaluating Sex Offenders: A Manual for Civil Commitment and Beyond” (Sage Publications, 2002). It is asserted in this publication that at the time of writing 15 American

32 states had enacted and implemented legislation that provided for the potential civil commitment of sexual offenders. These states are: Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, South Carolina, Texas, Washington and Wisconsin. Virginia has also passed, but not yet implemented, similar legislation. In all cases, this legislation applies to offenders who were nearing the end of a period of custody (in a prison, juvenile detention facility or mental health facility) which could result in indefinite continuing custody, except in Texas. It is of interest to note that both the American Psychiatric Association and American Psychological Association, the professional bodies of psychiatrists and psychologists, had expressed their opposition to civil commitment for this category of offender and would not assist with the development of appropriate procedures to be followed in commitment hearings.

33 7. An Analysis of the Alternative Models

An attempt will be made in this section of the report to highlight the apparent strengths and weaknesses of the sentencing and release options that have been identified in the survey of the law and practice in Australian and overseas jurisdictions that have been listed. It should be noted that these options are not all mutually exclusive as, for example, one could simultaneously support both Option Two and Option Three.

Option One — No Action The first option must be to take no action to make special provision for high risk sexual offenders other than that available in the new ACT sentencing legislation. In support of this view it must be said that the new legislation provides for a consideration of the risk of future offending being taken into account prior to imposing the sentence for the specific offence.

Even though the determination of future risk of re-offending is now much more sophisticated and accurate than it was a decade or more ago, it may not always be appropriate to rely on a single determination that has been made a considerable time before the sentence is completed. In particular, a pre-sentence determination of risk could not take into account whether or not the offender has participated in sex offender treatment and whether or not the offender has given any verbal indication that he or she is likely to re-offend if the opportunity arises.

Option Two — Make Provision for Indefinite Sentences As indicated earlier, several jurisdictions (WA, NT, etc) allow the courts in narrowly-defined circumstances to declare an offender at the time of sentencing to be a dangerous or habitual offender. Such a declaration has the effect of allowing the offender to be held in custody, or under supervision in the community, for an indefinite period even after a sentence with a fixed duration may have been completed. In such cases, release would be at the discretion of the court or a parole board. This option has the advantage of providing an opportunity for a risk assessment to be undertaken much closer to the time of possible release, but this approach carries with it the strong possibility that it may be overused. This is what Richard Parker describes as the problem of “false positives” in Section 8 of this report.

It must also be observed that the use of indefinite sentences for dangerous offenders was fairly common until the 1950s and 1960s, especially in the United States, but after that time this practice was increasingly seen as unacceptable for two separate reasons. In the first place, the procedures for the determination of eligibility for release became routine with little regard being paid to the individual circumstance of each offender. Secondly, it is now widely recognised that an indefinite sentence can be a form of mental torture as it provides no basis for planning one’s future life. In some jurisdictions the sentence for the worst forms

34 of homicide is ‘life’, perhaps with the additional words ‘never to be released’. When sentences of this type were introduced as an alternative to execution, they were seen as progressive and modern, but today they are widely seen as archaic and ineffectual. Almost universally, the most serious offenders would choose a definite sentence, even if it were 30 or 40 years, to one which is totally open-ended.

A further potential difficulty with the use of indefinite sentences for dangerous or habitual offenders is the fact that the offender’s prior criminal record can receive undue emphasis. For example, a petty thief may have scores, if not hundreds, of prior convictions and could quite correctly be described as an habitual offender, but few people would suggest that such an offender should be sentenced to imprisonment for life. Even within the sphere of sexual offenders there are many offenders known as ‘flashers’, or men who indecently expose their genitalia to women and girls without ever attempting to contact the victims. This is undoubtedly nuisance behaviour of a high order, but, again, life imprisonment would seem unduly harsh.

Notwithstanding these difficulties, the possible need for indefinite sentences to be imposed at the time of sentencing cannot be entirely ruled out in exceptional cases. This is a possibility that needs to be debated at the political and public level, but, in this writer’s view, it is not the answer to the problem of high-risk sexual offenders as in these cases the professional assessment of risk must be made as late as possible so that factors such as current attitude, responsiveness to treatment, etc can be taken into account.

Option Three — Continuing Supervision in the Community The models developed in Victoria and New Zealand illustrate the essential elements of this option and it must be recognised at the outset that any legislative provision of this type will unavoidably provoke intense public debate. No doubt many members of the public will argue that such provisions are necessary in order to protect vulnerable people, especially children, from becoming victims of appalling crimes, while others will no doubt argue that it is a fundamental tenet of a free and democratic society that no person can lose his liberty unless convicted of a crime by a court.

Both Victorian and New Zealand models have endeavoured to overcome the latter argument by ensuring that it is the courts rather than the executive or the legislature that makes the central decision, and thus an appropriate balance of power is maintained. As outlined earlier, in Victoria, the Secretary of the Department of Justice may apply to the court which imposed the original sentence, County Court or Supreme Court, for a supervision order which may extend for up to 15 years beyond the period of the original sentence. In New Zealand, the Department of Corrections may apply to the courts for a similar order.

Under this model there is no provision for continuing or indefinite detention, but that may be of little consequence as the conditions of the supervision order may be extremely restrictive,

35 including a requirement for the person to wear a locked anklet for electronic surveillance which may include geographic positioning as well as a requirement that the individual does not leave his designated place of residence other than in the company of a community corrections officer. These requirements may be in addition to the more common probation or parole conditions of regular reporting, no use of alcohol or drugs, avoiding any place where children may congregate. and not contacting named persons, such as previous victims.

It would be technically possible for the conditions attached to supervision orders to be even more restrictive than described above. For example, it is understood that GPS (global positioning systems) may be enhanced to include a permanent record of exactly where the individual was located, hour by hour and minute by minute. Thus, if the individual broke the curfew conditions or visited a proscribed location, there would be a permanent record showing where he was. Furthermore, it would be possible for the GPS microchip to be surgically implanted within the person’s body. Additionally, the conditions could include the consumption of medication to reduce sex drive and thus provide a form of ‘chemical castration’. It must be recognised, however, that it is very doubtful if any of these extreme measures would attract wide political or public support.

Option Four — Continuing Detention in Prison or Other Facility The final model is exemplified by the Queensland legislation which provides for either continuing supervision or continuing detention. Similar provisions are to be found in a number of American states, where the process is generally referred to as “civil commitment”. The prospect of indefinite detention or imprisonment under these provisions will be widely seen as draconian, but, as discussed above, very restrictive supervision in the community may involve a similar level of loss of liberty to the individual who is the subject of the order.

Nevertheless, as a matter of public perception, detention is seen as much more onerous than supervision, and therefore may be expected to attract even more vigourous opposition. For this reason, if for no other, extreme caution would be advisable before any movement was made in this direction.

36 8. The Determination of High-Risk Sexual Offending

This chapter was prepared by Mr Richard Parker

Before any decisions can be made about high risk sexual offenders, it is important to examine how it can be established that a particular offender poses a substantial degree of risk to the community. One of the statistics used in this field is the correlation coefficient, expressed as “r”. This can have values ranging from -1 to 1. A value of 1 indicates a perfect relationship between two factors, i.e., as one gets bigger so does the other. A value of -1 indicates a perfect inverse relationship: as one gets bigger, so the other gets smaller. A value of 0 indicates that there is no relationship between the two factors. In the social sciences, values greater than 0.4 (whether positive or negative) are considered large, and values below 0.1 are considered weak. Statistical tests are used to determine whether a correlation is considered significantly different from 0.

It should be recognised that risk of re-offending and severity of previous offending are not synonymous. Andrews (2001) points out the danger of confusing these terms. Some researchers have found inverse relationships between severity of offending and future risk. For example, Quinsey, Harris, Rice and Cormier (1998, p.147) found a correlation of -0.16 between the severity of the index offence and further violent offending, indicating that those who had committed more serious offences were less likely to offend in the future. The same finding would appear to apply to sex offenders as those who have committed “hands off” offences (e.g. exposure, indecent dealings) were more likely to re-offend than those who had physically molested a victim (Hanson and Bussiere, 1998) and that the degree of sexual intrusiveness in the index offence was also inversely related to the likelihood of further sexual offending.

Additionally, it should be noted that sex offenders are not a homogeneous population and that the risk of recidivism can vary widely between different individuals. Sex offenders range from those who commit relatively minor offences, such as exposure and possession of child pornography, to serial paedophiles and sadistic rapists.

Three different approaches have been used for the prediction of re-offending, whether sexual, violent or general. The first of these approaches to be used was clinical prediction, which represents an opinion by a clinician about the likelihood of further offending by an offender. Clinical prediction is still a commonly used approach.

The second method of risk prediction involves the use of actuarial instruments. An actuarial instrument is one that is constructed by combining a number of factors, which are correlated with recidivism, in such a manner that predictive validity is maximised. There are two main 37 types of actuarial instruments, purely static instruments that are based on fixed, unchangeable aspects about the offender or his history, such as prior offences and features of these prior offences. Examples of static risk prediction instruments used for the prediction of offending by sexual offenders are the Static 99 and the SORAG. The other type of actuarial instrument is constructed using dynamic or changeable aspects of the offender. The Level of Service Inventory-Revised (LSI-R) is a dynamic actuarial instrument used by ACT Corrective Services for risk prediction of general offending in all offenders.

The third type of risk prediction, clinically adjusted actuarial prediction, involves a clinician being able to over-ride or adjust the risk level produced by an actuarial prediction. These three types of prediction methodologies are compared below. However, a technical point should be explained first. Prediction can never be perfect as it is focussed on likelihoods. An outcome of an actuarial or clinical assessment may merely categorise an offender as high, medium or low risk. Validated actuarial tests may go further and be able to indicate the percentage of similar offenders who have reoffended. However this is not expressed as "Mr Bloggs is 35% likely to reoffend" rather the statement would be “Mr Bloggs’ score on this instrument falls in the high range of scores for this instrument. 35% of offenders in the development sample who had similar scores reoffended sexually within five years at risk”. It is not known if Mr Bloggs falls into the 35% who reoffended or the 65% who did not. It should also be noted that these figures will usually relate to official convictions or charges and that many offences go undetected.

Comparison of Risk Prediction Methodologies Actuarial instruments have proved far more effective than clinical judgement in the prediction of sexual, violent and general recidivism (Andrews and Bonta, 2003; Hanson and Morton-Bourgon, 2004; Monahan and Steadman, 1994; Quinsey, Harris, Rice and Cormier, 1998). In most studies, clinical judgement has correlated significantly, but weakly with recidivism (r ≈ 0.1). By contrast, actuarial schemes regularly produce correlations with recidivism greater than r = 0.3 or even 0.4. In a large meta-analysis, Hanson and Bussiere (1998) found that clinical prediction correlated 0.11 with sexual recidivism, whereas actuarial schemes achieved a correlation of r = 0.42. Some studies have demonstrated that intelligent lay people, such as school teachers, can predict recidivism as accurately as forensic psychologists and psychiatrists (Quinsey, Harris, Rice and Cormier, 1998, p. 57).

There is some evidence (Parker, 2002) that Probation and Parole Officers (PPOs) who had been trained in actuarial assessment could predict re-offending almost as well as the LSI-R. This could be a reflection of the fact that the PPOs were trained in the administration of the LSI-R and based their prediction largely on this score or the factors it contained, the fact that they received regular feedback about the recidivism of their offenders, or a combination of these factors. It should be noted that the psychologists and psychiatrists who are generally called upon to make predictions about recidivism at sentencing decisions in the ACT do not

38 generally use, or rely upon, actuarial instruments; nor do they receive regular feedback about the outcomes of their predictions.

Clinicians also demonstrate a tendency to be cautious and over estimate risk (Andrews and Bonta, 2003, p. 247) resulting in a substantial number of offenders being over classified, with attendant security costs. As an example, in one study (Parker, 2002) Probation and Parole Officers overestimated the base rate of recidivism among the offenders they supervised by a factor of two.

A further problem with clinical prediction of risk is that the predictive ability of the clinician in question is unknown. While it is possible for an individual clinician to gather data about their predictive ability and present this to the decision making authority, in practice this almost never happens. Instead, the clinician relies upon their qualifications and experience to convince the decision maker of their expertise. However as Grove and Meehl (1996, cited in Andrews and Bonta, 2003, p. 235) noted: “Clinical experience is only a prestigious synonym for anecdotal evidence when the anecdotes are told by somebody with a professional degree and a licence to practice a healing art”.

Tracey and Rounds (1999) noted that: “many studies have found that expert clinicians often are no more accurate than less expert clinicians but that they have greater confidence in their predictions”.

Despite the overwhelming superiority of actuarial instruments over clinical prediction, many risk prediction decisions around the world continue to be made using clinical judgements. Some arguments in favour of retaining some or all clinical judgement in predicting re- offending include situations where an offender’s circumstances provide some information about risk, which would not be captured, or would be underestimated, by an actuarial risk prediction scheme.

This issue is further complicated by the lack of validated dynamic risk prediction schemes for sex offenders.* The actuarial instruments with the greatest demonstrated validity in predicting sexual offences are composed entirely or predominantly of unchangeable factors (e.g. Static 99, MnSOST, VRAG, SORAG). Consequently, any treatment of the offender, no matter how effective, would not lead to any significant changes on the instrument. This means that the instruments cannot be used as an intermediate measure of the success of any treatment delivered. In contrast, for the prediction of general recidivism, there are a number of well-validated dynamic/static instruments with good predictive ability (e.g. LSI-R).

This issue has not gone unnoticed by the designers of actuarial tools who have spent considerable effort into designing dynamic risk prediction tools for sex offenders. A number of tools have been developed (Structured Risk Assessment, SONAR, STABLE-2000) but have not yet been demonstrated to have dynamic predictability: “The extent to which changes

39 in SONAR scores indicate changes in recidivism risk will only be known given repeated assessments in truly prospective studies” (Hanson and Harris, 2000). In designing the STABLE and SONAR, Hanson and Harris have drawn a distinction between stable dynamic factors, such as intimacy deficits, and acute dynamic factors, such as mood state. They hypothesise that the acute dynamic risk factors are likely to only have predictive validity for a short period of time, such as a month.

In response to the evidence in favour of actuarial schemes some researchers have advocated schemes for adjusting actuarial scores based on such information (Boer, Hart, Kropp and Webster, 1997). However, Hanson and Morton-Bourgon (2004) found that such schemes had not been scientifically evaluated to determine their effectiveness: “There were no sex offender recidivism studies that examined the accuracy of risk assessments in which judges were presented with actuarial results and then allowed to adjust their predictions based on external risk factors (Webster et al., 1994). Future research should consider such adjusted actuarial risk assessments because this approach has proven the most accurate in other domains (e.g., weather forecasting; Swets, Dawes & Monahan, 2000)”. Others, such as Quinsey et al. (1998) argue that introducing any clinical input is likely to dilute the accuracy of the actuarial prediction and should not be done at all. This issue will require further research before the argument can be resolved.

It is worth noting that all prediction schemes involve both Type I and Type II errors - that is the risk of incorrectly predicting someone will offend (false positive) or incorrectly predicting that they will not offend (false negative). Even with the best schemes, these numbers can be quite high. Monahan and Steadman (1994, p.9) remind us that official recidivism may underestimate actual recidivism, so that some of the “false positives” may, in fact, be accurate predictions, even though they would not be recorded as such using official measures.

In addition, when predicting extremely rare behaviours, such as murder, the most accurate prediction would be to predict no occurrences of the behaviour, as very few of even the highest risk individuals would be convicted of such an offence in the future. However, such a prediction strategy would be of little practical assistance to those who are attempting to identify the most dangerous individuals.

Consequently, a decision needs to be made about the relative importance of Type I and Type II errors. Typically, at sentencing, false positives are important - society gains no protection by imprisoning someone who was not going to re-offend, particularly given the high financial and personal costs involved in imprisonment. By contrast, when faced with release decisions, parole boards do not want to release someone who will re-offend. In essence, systems tend to be reluctant to imprison people, but once they have, they are reluctant to release them. Civil commitment decisions represent a more extreme dilemma than parole

40 boards, which can usually only delay release, as civil commitment could lead to lifelong incarceration.

Rather than ignoring this issue, any civil commitment regime should commit itself to the most accurate methods of recidivism prediction and explicitly outline the balance between Type I and Type II errors.

In the United States, where civil commitment provisions are quite common, between 2.5% and 10% of sex offenders, sentenced to prison and due for release, are considered for civil commitment, with an average rate of about 6% (Doren, 2005). As the ACT has a much lower rate of imprisonment than the USA, ACT prisoners are likely to be higher risk than the USA prisoners. It would appear safest to assume that 10% of ACT sex offenders, being released from prison, would be considered for civil commitment based on the criteria commonly used in the USA. It should also be noted that most sex offenders in the ACT are dealt with by way of community based sentence only, but when the new prison is completed, in 2007, treatment will be available in that facility.

References Andrews, D.A,. (2001). Principles of Effective Correctional Programs. In Motiuk, L.L. (Ed.). Compendium 2000 on Effective Correctional Treatment. Ottawa: Correctional Service Canada. Andrews, D.A,., & Bonta, J. (2003). The Psychology of Criminal Conduct 3rd Ed. Cincinnati: Anderson. Boer, D.P., Hart, S.D., Kropp, P.R., & Webster, C.D. (1997). Manual for the Sexual Violence Risk - 20. Vancouver: British Columbia Institute Against Family Violence. Doren, D.M. (2005). Personal Correspondence. Hanson, R.K., & Bussiere, M.T. (1998). Prediction relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362. Hanson, R.K., & Harris, A. (2000). The Sex Offender Need Assessment Rating (SONAR): A Method for Measuring Change in Risk Levels. Ottawa: Department of the Solicitor General of Canada. Hanson, R.K., Morton-Bourgon, K. (2004). Predictors of Sexual Recidivism: An updated meta-analysis. Ottawa: Public Safety and Emergency Preparedness Canada. Monahan, J., & Steadman, H.J. (1994). Violence and Mental Disorder: Developments in Risk Assessment. Chicago: University of Chicago Press. Parker, R.J. (2002). Intersource agreement on the prediction of recidivism. Unpublished Masters thesis. Canberra: University of Canberra.

41 Tracey, T.J., & Rounds, J. (1999). Inference and Attribution Errors in Test Interpretation. In Goodyear, R.F., & Lichtenberg, J.W. (Eds.). Test Interpretation: Integrating Science and Practice. Boston: Allyn & Bacon. Quinsey, V.L., Harris, G.T., Rice, M.E., & Cormier, C.A. (1998). Violent Offenders: Appraising and Managing Risk. Washington DC: American Psychological Association.

42 9. The Effectiveness of Sexual Offender Treatment

This chapter was prepared by Mr Richard Parker

Even though considerable research has been conducted on the effectiveness of sex offender treatment, there is still considerable debate about this topic.

Stalans (2004) noted “Despite some encouraging reports, evidence that clearly demonstrates the impact of treatment on sex offenders is still ambiguous, particularly for in-patient programs. More important, few comprehensive evaluations of treatment programs funded by federal corrections have been reported.”

Other researchers have had much more optimistic conclusions, such as Marshall (2004) who summarised five different meta-analyses and found treatment effect sizes ranging from 0.10 to 0.33. A large meta-analysis (Hanson, Gordon, Harris, Marques, Murphy, Quinsey and Seto, 2002) summarising 43 studies for a total of 9,454 offenders found that the sexual recidivism rate for treated offenders was 12.3% compared to 16.8% for the comparison groups. This study, was conducted by a diverse group of well-respected researchers who believed treatment can be effective (e.g., Marques), were cynical about the effectiveness of treatment (e.g. Quinsey), or were academically neutral to the outcome (e.g. Hanson). They concluded: “We believe that the balance of available evidence suggests that current treatment reduces recidivism, but that firm conclusions await more and better research”.

While many people might argue that this reduction in recidivism is small and clinically insignificant, it is worth noting that even small reductions in recidivism can save the community more money than it costs to deliver the treatment and hence be cost effective without taking into account the social benefits delivered by the reduction in offending (Welsh and Farrington, 2002).

Additionally, the small effect size in this meta-analysis is partially a result of the low base rate for sexual recidivism among sex offenders. While the public is generally led to believe that all sex offenders will re-offend, the reality is quite different (Marshall and Williams, 2000) as evidenced by the low base rate for untreated offenders in the Hanson et al. meta- analysis. If effect, this represents a 27% decrease in the amount of crime committed by the treated sex offenders.

43 What Type of Treatment Works? It should be clear from the discussion above that, while treatments appear to be mildly effective, not all treatments are alike and some treatments can be much more effective in reducing recidivism. There are a range of factors that have been linked with effective treatment of sex offenders and general offenders. Andrews (2001) outlined 18 principles of effective correctional programs:

• Principle 1: Base your intervention efforts on a psychological theory of individual criminal behaviour, rather than aggregated crime rates; • Principle 2: Use a broad band general personality and social learning approach to understanding variations in criminal behaviour; • Principle 3: Introduce human service strategies and do not rely on the principles of retribution or restorative justice and do not rely on principles of deterrence (specific or general) and/or on incapacitation; • Principle 4: Community based services are preferred over residential/institutional settings; • Principle 5: More intensive human services are best reserved for higher risk cases; • Principle 6: Target criminogenic need - those dynamic risk factors that, when addressed, result in reduced re-offending. • Principle 7: Target a number of criminogenic needs; • Principle 8: Assess risk and criminogenic need using validated risk/need assessment instruments. Do not confuse seriousness of the current offence with risk of re- offending. Seriousness of offence is an aggravating factor at the time of sentencing but is not a major risk factor; • Principle 9: General Responsivity. Staff should relate to offenders in a manner most likely to produce behaviour change and should present information in a manner which can be absorbed by the offenders; • Principle 10: Specific Responsivity. Certain sub-groups will require a different style of intervention. Make use of individuals strengths; • Principle 11: Assess Responsivity and strength factors; • Principle 12: Provide aftercare, structured follow-up, continuity of care, and relapse prevention. • Principle 13: Professional discretion - In a few cases, with well documented reasons, deviations from these principles may be advisable; • Principle 14: Create and record a case plan and any modifications to that plan;

44 • Principle 15: Programs should be introduced and delivered in the manner they were designed. They should be closely monitored for evidence of program drift and appropriate corrective action should be taken; • Principle 16: Staff should be selected for a range of skills including relationship skills, structuring skills, and beliefs supportive of correctional intervention. Their work environment should provide social support for clinical relevant treatment and they should receive regular clinical supervision and training; • Principle 17: Managers should be good managers who are also intimately familiar with these principles; • Principle 18: Correctional agencies should be attentive to the broader social arrangements in their surrounding community and hosting agency.

It should be clear, from the points above, that correctional programs will vary in their adherence to these principles. It been demonstrated, through the use of the Correctional Program Assessment Inventory, (CPAI, Andrews and Gendreau, 2000) that programs, which adhere more closely to these principles, produce higher effect sizes.

Therapist Factors The small average effect noted by Hanson et al. (2002, mentioned earlier in this section) consists of a range of programs, some of which are more effective. It is interesting to contrast the overall positive, but small, effect noted by Hanson et al., with a well designed, random assignment, experiment which demonstrated no treatment effect - the Sex Offender Treatment and Evaluation Program (SOTEP - Marques, Wiederanders, Day, Nelson, and van Ommeren, 2005). This program, while aiming to address a range of targets common to sex offender programs at the time, did not attempt to build and maintain motivation. In addition, the SOTEP program was strictly manualised, which may have prevented the facilitators from utilising therapist factors that have been linked with reduced recidivism, such as non confrontational challenge, empathy, warmth, rewarding, directive, (Marshall, 2004); relationship skills, structuring skills, effective reinforcement, effective modelling, effective disapproval, structured skill learning, problem solving, advocacy/brokerage, effective authority (Andrews and Bonta, 2003, p.311); competent, confident, sensitive individuals who ascribe to a "firm but fair" approach in dealing with offenders (Preston, 2000); and responding in sensitive and constructive ways (Ferguson, 2002).

Given that the above factors have been linked with reductions in recidivism, any program, that is highly structured and psycho-educational, is likely to 'program out' the ability of the therapists to use or demonstrate these factors and hence, reduce the effectiveness of the program. Programs that allow therapists to demonstrate these therapist-related factors are necessarily more flexible and grant a degree of autonomy to the individual therapists. This flexibility is an essential component of ACT Corrective Services’ Sex Offender Program.

45 Community Based Treatment In a meta-analysis of sex offender programs, Hall (1995) found that treatment effects were stronger in outpatient settings than in institutional settings. This finding is also noted for treatment of general offenders (Andrews and Bonta, 2003, p.96) and should be considered fairly robust. Consequently, treatment of sex and other offenders should be delivered in the community rather than custodial settings whenever possible. However, when this cannot be done safely, or when compliance with treatment in the community cannot be managed, treatment should be delivered in custody, rather than not at all. In addition, under current laws in the ACT, custodial treatment for sex offenders cannot be mandated, although offenders are made aware it is a factor in parole consideration.

Coordinated Case Management Sex offenders have high rates of either dropping out or being expelled from treatment (Stalans, 2004). Additionally, it is not uncommon for sex offenders to refuse to attend treatment after being directed to attend by a court, parole board or their Probation and Parole Officer (PPO). Obtaining and maintaining offenders’ involvement in treatment requires resources dedicated to supervision of the offender. It is also beneficial to involve the offender’s family or friends in the community based management regime. English, Pullen and Jones (1996) advocate a “containment approach” where the offender is strictly monitored (including regular home visits and monitoring of their computer use), required to attend treatment and are subject to regular polygraph tests regarding their behaviour in the community. They also advocate lifetime parole for higher risk sex offenders.

A variant of the containment approach, which has been used with some success in a limited number of cases in the ACT, is the use of Support and Monitoring Groups (SMG). A SMG is composed of the PPO, program therapist and a range of prosocial people from the community who agree to support the offender’s recovery, but also will hold him accountable for his behaviour. SMG members are screened and trained by the PPO and program therapist - people with antisocial tendencies or who are not prepared to hold the offender accountable, (e.g. by colluding in the offender’s denial) are not suitable. SMG members will agree to have regular contact with the offender, whom they will encourage to engage in prosocial activities, while simultaneously monitoring for any signs of relapse into offending behaviour. While clearly beneficial, this process is time intensive and, as it is not separately funded, requires the PPO to devote additional time to this class of offender, at the expense of the other offenders they supervise.

Typologies of Sex Offender While the media commonly use the terms ‘sex offender’ and ‘paedophile’ interchangeably, it is important to note the differences in these terms. Paedophilia refers to a psychiatric diagnosis involving a sexual preference for pre-pubescent children. When this has been measured objectively (with a device called a penile plethysmograph) most men who have sexually abused children do not have a sexual preference for children, i.e. are not

46 paedophiles. While a sexual preference for children is clearly a risk factor for further sexual offending, it is only one of a number of risk factors.

The distinction between those who sexually offend against children and those who sexually offend against adults may be more a feature of the low detection rates for sexual offences than a reality. A study in Colorado using polygraph (‘lie detector’) found that, while only 6% of their sample had an official record of offending against both adults and children, after polygraph testing, 71% of the sample admitted to having molested both adults and children. This would suggest that the distinction between ‘rapists’ and ‘paedophiles’ may be more myth than reality. Most sex offender treatment programs involve mixing different ‘categories’ of sex offenders in the same group and address similar treatment targets. The core issues involve respect for others and a good understanding of consent issues, rather than sexual attraction. The level of risk posed by each offender is probably the one ‘typology’ which has some meaning to treatment and correctional agencies, as high risk offenders require greater doses of treatment than lower risk offenders.

Treatability One contentious topic in correctional rehabilitation is the issue of treatability, or the extent to which categories of offenders can benefit from treatment. Marques (1999) found that treatment was beneficial for certain categories of child molester. In contrast, a number of researchers have found that people who are diagnosed as psychopaths do not benefit from treatment.

Stalans (2004) noted: “Research has shown that psychopathic deviants use their charm and manipulation skills in sex offender treatment to obtain good behavior ratings from therapists, but this good behavior and presumed ‘compliance’ with treatment is unlikely to transfer to their conduct outside of treatment. Psychopathic deviants who behaved well in treatment were significantly more likely to commit new serious offences (Seto & Barbaree, 1999). Hare (1996) also noted that group therapy and insight-oriented programs can actually help psychopaths develop better ways of manipulating and deceiving people, but the therapies do little to change their lack of empathy or acceptance of responsibility or to reduce sexual or violent recidivism.” However this finding still requires some research as there are some (Wong and Hare, 2005) who believe certain types of treatment may be effective for psychopaths, although this has yet to be demonstrated.

Stalans (2004) noted that psychopaths are less likely to complete sex offender treatment. Failure to complete treatment was also associated with being unmarried, having poor educational attainment and being unemployed or under employed.

In Summary, the evidence seems to suggest that there are positive effects from most treatment programs, but the probability for psychopaths is greatly reduced or eliminated.

47 Additionally, some treatment programs are more effective than others and this can be predicted by their adherence to the principles outlined by Andrews (2001).

Footnote: * It is possible that the failure to find dynamic risk prediction factors for sex offenders may be an artefact of the long follow-up periods used in validating the risk assessment instruments commonly used with sex offenders. Contrary to popular opinion, official recidivism rates for sex offenders are very low, so that long follow-up periods (5-10 years) are required to secure sufficient recidivists. During such a long follow-up period, any dynamic predictor is likely to change many times and, statistically, wash out.

References

Andrews, D.A,. (2001). Principles of Effective Correctional Programs. In Motiuk, L.L. (Ed.). Compendium 2000 on Effective Correctional Treatment. Ottawa: Correctional Service Canada. Andrews, D.A,., & Bonta, J. (2003). The Psychology of Criminal Conduct 3rd Ed. Cincinnati: Anderson. Andrews, D.A,., & Gendreau, P. (2000). The Correctional Program Assessment Inventory Manual. Unpublished Document. Doren, D.M. (2002). Evaluating Sex Offenders: A Manual for Civil Commitments and Beyond. London: Sage. English, K., Pullen, S., & Jones, L. Managing Adult Sex Offenders: A Containment Approach. Lexington, KY: American Probation and Parole Association. Ferguson, J.L. (2002). Putting the “What Works” Research into Practice: An Organisational Perspective. Criminal Justice and Behavior, 29(4), 472-492. Hall, G.C.N. (1995). Sexual offender recidivism revisited: A meta-analysis of recent treatment studies. Journal of Consulting and Clinical Psychology, 63, 802-809. Hanson, R.K., & Bussiere, M.T. (1998). Prediction relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348-362. Hanson, R.K, Gordon, A., Harris, A.J.R., Marques, J.K., Murphy, W., Quinsey, V.L., & Seto, M.C. (2002). First Report on the Collaborative Outcome Data Project on the Effectiveness of Psychological Treatment for Sex Offenders. Sexual Abuse: A Journal of Research and Treatment, 14(2), 169-194. Marshall, W.L. (2004). Assessment and Treatment of Sexual Offenders. Presentation to NSW Commission for Children and Young People. Marshall, W.L., & Williams, S. (2000). Assessment and Treatment of Sex Offenders. Forum, 21. www.csc-scc.gc.ca <http://www.csc-scc.gc.ca>. Marques, J. K. (1999). How to answer the question: Does sex offender treatment work? Journal of Interpersonal Violence, 14, 437-451. 48 Marques, J.K., Wiederanders, M., Day, D.M., Nelson, C., & van Ommeren, A. (2005). Effects of a Relapse Prevention Program on Sexual Recidivism: Final Results from California’s Sex Offender Treatment and Evaluation Project (SOTEP). Sexual Abuse: A Journal of Research and Treatment, 17(1), 79-107. Preston, D.L. (2000). Treatment Resistance in Corrections. Forum, 21. www.csc-scc.gc.ca. Stalans, L.J. (2004). Adult Sex Offenders on Community Supervision: A Review of Recent Assessment Strategies and Treatment. Criminal Justice and Behavior, 31(5), 564-608. Welsh, B.C., & Farrington, D.P. (2002). Evaluating the Economic Efficiency of Correctional Intervention Programs. In Bernfeld, G.A., Farrington, D.P., & Leschied, A.W. (Eds.). Offender Rehabilitation in Practice. Chichester: John Wiley and Sons. Wong, S. & Hare, R.D. (2005). Guidelines for a Psychopathy Treatment Program. www.mhs.com.

49 10. Human Rights Considerations

Overview of the Human Rights Act The Human Rights Act 2004 (HRA) came into force on 1 July 2004 and gives legal effect to individual civil and political rights enshrined in the International Covenant on Civil and Political Rights (ICCPR).

Dialogue model The HRA gives new responsibilities to each arm of government – the executive, the legislature and the judiciary. The dialogue model ensures that human rights are taken into account in administrative and judicial decision making and the development of new laws for the Territory.

The HRA introduces a new rule of statutory construction, which requires that all ACT statute and statutory instruments be interpreted and applied, as far as possible, in a way that is consistent with the human rights protected in the Act.

The HRA is an ordinary statute. Unlike a constitutionally entrenched bill of rights model, human rights will not ‘trump’ other laws where there is an inconsistency between Territory law and the HRA and the Legislative Assembly retains all its existing law making power.

Remedies The HRA does not create a new or independent right of action. Instead, the HRA embeds human rights principles into all existing and future ACT laws and travels with existing causes of action. It will allow a human rights argument to be raised during a proceeding and it will create new grounds on which to base a claim. The remedies that are already available will apply in cases where a human rights argument is raised.

The HRA empowers the Supreme Court to issue a declaration of incompatibility when the court is unable to interpret Territory law consistently with human rights. The declaration of incompatibility is an additional form of declaratory relief and all existing remedies currently available remain available to litigants who raise a human rights issue during proceedings. The provision of a declaration of incompatibility does not affect the validity, operation or enforcement of the law or the rights or obligations of anyone. Its purpose is to draw to the attention of the Government and the Assembly an issue of incompatibility.

50 Interpretation of human rights In order to promote a consistent interpretation of universal standards that derive from the ICCPR, section 31 HRA provides that ‘international law and the judgements of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right’.

The views and general comments of the Human Rights Committee, which is the treaty body responsible for monitoring the ICCPR, are direct sources of interpretation for the HRA. Judgements of the UK and NZ courts are also highly relevant, given that their respective human rights legislation were used as models for the HRA. In addition the judgements of the European Court of Human Rights (ECtHR), the regional court under the European Convention on Human Rights (ECHR) are relevant, as the UK Human Rights Act 1998 directly incorporates all the human rights that are in the European Convention on Human Rights (ECHR).

It is a widely accepted general principle that human rights are given a broad interpretation and any limitations should be read narrowly. It is well established in comparative jurisprudence that human rights must be given a ‘generous and purposive’ interpretation, ‘avoiding the austerity of tabulated legalism’ and ‘suitable to give to individuals the full measure of the fundamental rights and freedoms referred to’. Provisions that qualify or place restrictions on rights must be narrowly interpreted.

Reasonable limits Some rights are absolute and cannot be restricted in the interests of balancing other competing interests, for example, the prohibition against torture. However, human rights law generally recognises that one person’s rights cannot be enjoyed at the expense of another’s, and that where rights and interests clash there needs to be a rational and consistent way of working out limitations. It is not simply a question of balancing one person’s rights against another’s. Human rights law has developed the ‘proportionality test’, which is a framework that is used to work out what are legally acceptable limitations on human rights.

Section 28 HRA brings the ‘proportionality test’ into Territory law and states that:

‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.’

The limit must be reasonable, demonstrably justifiable in a free and democratic society and authorised by a Territory statute or statutory instrument. Whether a limit is reasonable depends upon whether it is proportionate to achieve a legitimate aim. Proportionality requires that the limitation be necessary and rationally connected to the objective; the least restrictive in order to accomplish the object; and not have a disproportionately severe effect on the person to whom it applies. It is a matter of weighing:

51 • the significance in the particular case of the values of the HRA; • the importance in the public interest of the intrusion on the particular right; • the limits sought to be placed on the application of the particular right in the particular case; and • the effectiveness of the intrusion in protecting the interests put forward to justify those limits.

In essence, the inquiry is two-fold. First, whether the provision serves an important and significant objective; and second, whether there is a rational and proportionate connection between that objective and the provision. This is a well established formula used in human rights law in comparable countries and is in keeping with the general rule that limits on fundamental human rights must be read as narrowly as possible.

HRA Implications of Indefinite Sentencing and Conditional Release Programs The key HRA provisions that will be engaged in indefinite sentencing and conditional release programs relate to: • the right not to deprived of liberty unlawfully or arbitrarily (s 18(1) HRA); and • the right to challenge the lawfulness of the detention (s18(6) HRA).

Section 18 HRA expresses the presumption in favour of liberty and sets out the minimum rights of individuals who are arrested or detained to minimise the risk of arbitrary or unlawful deprivation of liberty. The right applies to all forms of detention, and includes persons convicted of offences and upon whom a custodial sentence has been imposed.

Such schemes are also likely to raise issues in relation to: • the right to equality and non-discrimination (section 8); • the prohibition on cruel, inhuman or degrading treatment (section 10); • the right to privacy (section 12); • the right to freedom of movement (section 13); • the right to humane treatment when deprived of liberty (section 19); • the right to presumption of innocence (section 22); and • the right not have a greater penalty imposed than the one applicable when the offence was committed (section 26).

Indefinite sentences and conditional release programs will not necessarily be inconsistent with the HRA, provided that they have regard to the circumstances of the offence and the offender, and are subject to the strictest procedural safeguards, including periodic review by a court. 52

In order to be justifiable under section 28 HRA, such schemes would have to be shown to be clearly aimed at a legitimate objective and be proportionate to that goal. The proportionality test in this case should be a fairly strict one and the wider the restrictions are, the greater is the risk that they will be regarded as disproportionate.

UN Human Rights Committee The UN Human Rights Committee has held that preventive detention, once a punitive term of imprisonment has been served, is not inconsistent with the ICCPR where there are compelling reasons for the detention and adequate provisions for regular review.

For the detention be free from arbitrariness, it must reviewed regularly by an independent body to determine the continued justification of detention for the purposes of protecting the public. Such reviews are necessary because of the individual’s potential to change, and to become less dangerous over time, for example, as a consequence of successful therapy, or as a result of an ailment reducing his physical abilities to commit a specific category of crimes.

In the Committee's view, it also follows that detention for this purpose does not offend the presumption of innocence, ‘provided that the necessary safeguards are available and in fact enjoyed’.

ECtHR The European Court of Human Rights has also recognised that once the purpose of detention has shifted from punishment to detention for preventive purposes, detention can become unlawful and arbitrary if there are no adequate systems of renewal in place at that point. The individual's characteristics that result in preventive detention, e.g., recidivism or dangerousness, are similarly recognised by the ECtHR as qualities susceptible to change. Therefore, regular review before a body properly empowered to determine the validity of ongoing detention is a requirement for both fixed-term and indefinite preventive measures.

In V v United Kingdom, the ECtHR held that the indefinite sentence was neither arbitrary, inhuman nor degrading as it provided for consideration of the offender's individual circumstances, with release occurring once it is determined to be safe for the public to do so. Similarly, in T v United Kingdom, the ECtHR, recognising the State’s obligation to take measures for the protection of the public from violent crime, considered that the ECHR did not prohibit indefinite sentences, where considered necessary for protection of the public.

Articles 5(1) and 5(4) of the ECHR, which are analogous to sections 18(1) and 18(6) HRA have been interpreted to require both the 'punishment' and 'prevention' part of the sentence to be made and specified at the point of disposal. The offender should have access to a review body following the end of the punitive part of the sentence to have their continued detention reviewed. The body which has the responsibility of reviewing the legality of continuing detention must: 53 • be independent of the executive and impartial; • have more than merely advisory functions; and • have the competence to 'decide' the lawfulness of detention, and to order release if the detention is unlawful

A parole board has been recognised as capable of exercising this function.

United States The US Supreme Court has approved the constitutionality of legislative schemes that permit the civil detention of sexual offenders. In essence this is civil detention imposed after the sentence has been passed on the grounds of a mental condition. In Kansas v Hendricks, the Court found that Kansas' sexual predator statute met substantive due process standards by requiring considerable evidence of past violent sexual behaviour and a present mental inclination to repeat such offences. The Court also held that the scheme did not violate double jeopardy guarantees since it authorised ‘civil’ rather than ‘criminal’ detention.

The case law of the ECtHR and the provisions of the ECHR (which are similar to the HRA) strongly suggest that the form of civil detention adopted in the US, where indefinite sentencing is not passed until the custodial sentence has been almost served, would be contrary to the ECHR. However, the legality of a US-type system has not been tested before the ECtHR as most European jurisdictions provide for the punishment and prevention parts of the sentence as two parts of a whole.

Canada In R v Lyons, the Canadian Supreme Court held that dangerous offender legislation, which permitted a court to impose an indefinite sentence on an individual found to be a dangerous offender, was consistent with the Canadian Charter of Rights. The Court emphasised the requirement for parole review, describing it as the 'sole protection of the offender's liberty interest.'

It should be noted that since the Supreme Court’s decision in R v Lyons, mandatory indefinite sentencing has been introduced, whereby a court must pass an indefinite sentence on an offender designated 'a dangerous offender'. Some commentators have suggested that the removal of judicial discretion in this regard may violate sections 7 (the right not to be deprived of liberty and security except in accordance with the principles of fundamental justice) and section 9 (prohibition of arbitrary detention or imprisonment) of the Charter.

In Warden of Mountain Institution v Steele, the Canadian Supreme Court held that continued detention without further justification based on the dangerousness of the offender was a violation of section 12 of the Charter which prohibits cruel and unusual punishment.

54 New Zealand In her report under section 7 of the NZ Bill of Rights, the NZ Attorney General concluded that the following provisions in the Parole (Extended Supervision) and Sentencing Amendment Bill were inconsistent with the NZ Bill of Rights 1998: • the imposition of significant restrictions of liberty on individuals who were convicted prior to the legislation coming into force infringed the right not to be subject to double jeopardy; and • the imposition of 24 hour electronic monitoring on individuals subject to an extended supervision order contravened the privacy and search and seizure provisions of the NZ Bill of Rights.

55 11. Discussion and Conclusions

The basic models for dealing with high-risk sexual offenders have been outlined in the previous pages. In the analysis of the alternative models in section 7, above, it has been shown that these different models can be reduced to four different options, which are not all mutually exclusive. As the terms of reference for this inquiry do not specifically call for a recommendation to be made as to which option is to be supported, the writer has decided to present as much information as possible, but to leave the detailed decision as to what, if anything, should be done to the ACT Government. It could be seen as inappropriate for a consultant to recommend what legislation a government should or should not enact, while it is of course, acceptable for a consultant to offer information which assists that decision- making process.

The small number of cases which have received very considerable media coverage occurred in Victoria, Queensland and New South Wales. The latter case being of an offender who committed a very serious sexual offence in the ACT and was sentenced to a long prison term, which was served in New South Wales. This offender did not participate in sex offender treatment while in prison (for at least some of his time in prison he was not eligible for this treatment as he was in a high security prison) and he rejected the possibility of release on parole. He also made a statement indicating quite clearly that he intended to re-offend as soon as the opportunity arose. This he did in Sydney shortly after his release by repeatedly raping a 10 year old girl after killing her step father.

It is not surprising that such an appalling crime should provoke wide public concern together with calls for the government to prevent this type of crime occurring ever again. The offender in this case was an ACT prisoner but it is understood that the ACT has no legislation which would apply to this type of case. As the ACT will have its own prison in 2007 and will therefore be responsible for all ACT prisoners from that time on, it is timely for the ACT Government to consider whether or not the ACT needs new legislation of the type enacted in Victoria, Queensland and New Zealand. There are a number of aspects of any new legislation in this area that need to be considered if action is to be taken and some of these are discussed below.

In the first place, it is recognised that the ACT is the only jurisdiction in Australia which has its own human rights legislation. The implications of this are discussed in section 9 of this report above, but it is possible that some people will see it as a contradiction for the ACT to pass legislation which had the potential to detain in prison, or supervise in the community, individuals who have already completed the sentences imposed upon them. Against this, it will no doubt be claimed that it is the responsibility of all governments to strike a balance between the rights of individuals and the need to protect the general community from the threat or perception of serious crime, especially if that crime is directed against children.

56 The number of high-risk sexual offenders Another major concern about the consequences of legislation of this type is the number of people it will effect. It has been shown above that the numbers, even though inexact, in the USA and in Canada are much higher than would be tolerable in Australia. The numbers of offenders serving indefinite or indeterminate sentences in each Australian jurisdiction have been indicated in the text above, but it is not always clear whether or not these numbers refer only to sexual offenders or include persons declared to be dangerous for other offences.

The actual numbers identified to date by special sex offender legislation in Victoria and Queensland are relatively small. As indicated earlier, in Victoria one offender has been placed on a post sentence supervision order and one further case is under consideration, while in Queensland two continuing detention orders, one interim detention order and five continuing supervision orders have been made. In the ACT it has been estimated by an authoritative source that perhaps there are four people whose sexual offending may justify special consideration. In New Zealand, since July 2004 a total of 32 extended supervision orders have been made. It is impossible to be precise, but in the view of the writer it is unlikely that the total number of high-risk sexual offenders who could be eligible for post sentence intervention would be unlikely to exceed around 50. It must be recognised, however, that the number that would be identified in the future would obviously depend on the standard of proof, or standard of probability, that is set.

The probability of re-offending The recidivism rates for sexual offenders who have undergone treatment, as quoted by Richard Parker, are remarkably low and would certainly not justify continuing intervention without other causes of concern. It is suggested that the standard should be at least that the offender is seen by experts in the field to be “more likely than not” to re-offend after completion of the sentence. Alternatively, the standard could be set at “highly likely to re- offend” in the short term, but it is doubtful if the criminal law standard of proof of “beyond reasonable doubt” could realistically be applied to predictions of future behaviour, except in cases where the offender has made a clear statement indicating his intentions.

The experts needed Whatever standard is set, a matter of vital interest is the type of experts who would be called upon to express their views, which would ultimately be considered by a court. It is suggested here that if new legislation is to be considered it should include a minimum requirement that at least two experts, one a psychiatrist and the other a psychologist, both of whom having several years of experience in dealing with sexual offenders, should be required to submit reports which were prepared independently of each other. This would not prevent other persons such as probation or parole officers, social workers, welfare officers and school teachers making a contribution to the package of reports that would be prepared, but such a requirement would ensure that a matter could not be taken to court without a sound professional basis.

57 The coordinating agency Another question that would need to be answered is: what person or agency should be responsible for collecting the evidence indicating that a named individual was an unacceptable risk to the community. An argument could no doubt be mounted that the appropriate authority would be the Director of Public Prosecutions, but it could also be argued that it could be the Chief of ACT Policing or the Director of ACT Corrections. On balance it is suggested that Director of ACT Corrections would be appropriate as it is primarily, even though not exclusively, correctional experts who are able to make scientific predictions of future behaviour. If the Director of ACT Corrections were responsible for the coordination and assembly of expert opinion, no doubt the holder of that office would welcome the input of other agencies representing mental health and the police.

The role of the courts Possibly the most important issue to resolve if new legislation is to be pursued is which authority would be responsible for ordering continuing detention or supervision of offenders beyond the period of a sentence imposed. Clearly the answer must be the courts as it would be seen as a gross breach of the division of powers if either the executive or the legislature took it upon themselves to interfere with the lives of free citizens. The question remains, however, as to who would make the presentation in the courts, and it is suggested that the Director of Public Prosecutions would be most suited to this task. It is also suggested that as a matter of principle, a person who is the subject of such an order in a court should be represented by a qualified and experienced practitioner, paid for by legal aid if necessary. Also, it would seem to be essential that appropriate appeal and review procedures to the courts be provided.

Preventive detention or supervision There is no doubt that a strong argument can be made against the use of preventive judicial intervention as traditionally it is assumed that the courts may only impose restrictions on the life of an individual if that person has been convicted of a specific criminal offence. The fact that a person is seen as likely, or even highly likely, to commit a crime would not generally be accepted as sufficient justification for detention or other restriction, but there are counter arguments that can be made. For example, of the approximately 22,000 people in prison throughout Australia today, over 5000 have not been convicted. They have been remanded in custody, and they may be held in custody for many months or even years, primarily to prevent the continuation or repetition of the the alleged crime which led to their remand. It is conceded that in some of these cases the principal reason for the remand is to ensure the accused person will appear in court, but it is also relevant to note that the majority of remandees are not sentenced to prison as they are either acquitted, given a non-custodial sentence, or sentenced to a period which equates to the period they have served on remand. Furthermore, the use of police custody is clearly intended to prevent the continuation or repetition of unacceptable behaviour, albeit for relatively short periods of time. Then, of course, there are various forms of mental health detention which is intended to prevent harm 58 to the individual or to others. Preventive detention is not completely unknown to Australian law and practice.

A national approach Recent media reports have drawn attention to a case in which a former sexual offender on parole from Western Australia was under supervision in New South Wales under the interstate agreement for transfer of persons serving non-custodial correctional orders between Australian jurisdictions. When this case came to the attention of the media, the New South Wales government ordered that he be returned to Western Australia. This decision is to be regretted as this cooperative arrangement between Australian jurisdictions is widely used, with nearly all jurisdictions both sending and receiving parolees to and from other jurisdictions. In many cases this arrangement provides the only real opportunity for a former offender to make a fresh start where he or she is not widely known. Furthermore, if the supervision arrangements in the individual case involve close relatives of the parolee (as was the case with the recent case in New South Wales where the parolee was living with his mother) the chances of effective rehabilitation must be significantly improved. It is suggested that this be placed on the agenda for a future national meeting of Attorneys-General or Ministers responsible for corrective services.

Similarly, it is suggested that the recently established national register of sex offenders is kept under review by Ministers for Policing to ensure that the exchange of information between jurisdictions is working effectively. It may also be worth considering for the national register to flag high-risk cases in order to ensure that they receive a higher level of monitoring.

The problem of non-reporting A major reason why it is extremely difficult, perhaps impossible, to establish an estimate of the size of the problem of sexual offending is the fact the vast majority of cases are not reported to the police or other authorities. Workers in rape crisis centres, however, learn (informally and confidentially) of the very large number of cases that have not been reported and they also have suggested that there seems to be considerable cross over by offenders in their choice of victims. It is apparently not the case that sexual offenders tend to focus on specific types of victims, such as very young girls or pubescent boys, and individual offenders are commonly responsibly for offences against a range of different victims as well other offences. The issue of non-reporting of sexual offences raises a number of difficult ethical and practical problems, but it is suggested that unless policy makers and researchers are able establish a reasonably accurate picture of the real nature and extent of this type of offending preventive and treatment policy will be guided more by guesswork than by evidence.

The need for further research It is obvious from the lists of references in some of the earlier chapters in this report that considerable research has been conducted on the question of what works in reducing re- 59 offending with different types of offenders, but it can be seen from these lists that nearly all of this research has been undertaken in either the United States or Canada. There are significant social and attitudinal differences between Australia and North America, and therefore it would be highly desirable if more research of this type were conducted in Australia. This is not something that the ACT can do by itself, but it can encourage and cooperate with national projects which focus on this area of concern.

As noted above, research is needed on the challenging question of how much, and of what type, sexual offending occurs in the community, but there are many other issues the need to be investigated. These include the issue of what can be shown to be effective in this country to reduce the probability of re-offending of different types of sexual offenders. There are also a number of technical issues such as the possible use of polygraph machines to establish the seriousness of offenders who claim that they are not going to re-offend, and those that claim that they are.

The management of information to victims Towards the end of the enquiry the writer received a verbal proposal from the Victims of Crime Coordinator suggesting that the managed release of information to victims, especially the victims of sexual offences, was an important part of the process of achieving a crime-free return of offenders to the community. This was particularly the case, she argued, in the development of management assessment plans for these offenders, and she gave many examples of cases where victims were denied any input into this process and were also not given basic information about the operation of the plans. This argument could be seen as not central to the issue of the sentence and release options for high-risk sexual offenders, but it is nevertheless of general relevance to the broader questions of how to assist victims to respond to their victimisation in a healthy and constructive manner.

Intellectually disadvantaged sexual offenders Representatives of the Department of Disability, Housing and Community Services met with the writer and also made a written submission in which they argued that intellectually disadvantaged sexual offenders were over-represented in the criminal justice system and they suggested that these people should not be overlooked in this report. Such offenders may be found by the courts to be unfit to plead and are then referred to the Mental Health Tribunal which may impose a Community Care Order or Restriction Order under the ACT Mental Health (Treatment and Care) Act 1994. The representatives described the development of a new Intensive Treatment and Support program which will involve additional clinical and behavioural support to participants. They also informed the writer that a small secure accommodation facility was currently being constructed for people of this type, and suggested that this development may reduce the extremely high costs to the Government that are incurred in some of these cases. This submission may be seen as not within the terms of reference of this inquiry, but it is believed to be of considerable relevance to the broader question of how offenders of this type can be managed in a humane, effective, and yet fiscally responsible manner. 60

The Bravehearts Inc position paper The position paper by Bravehearts Inc under the title The Management and Treatment of Child Sex Offenders is reproduced as an appendix to this report with the permission of the organisation. While the writer would not endorse all that is suggested in the paper it is clearly a carefully considered document that is well researched and adopts a responsible position in calling for more research into areas of concern.

Conclusion There are no doubt many other details that would need to be carefully considered before any action is taken, but the issues outlined above could be a useful starting point for such further consideration. Above all, it is hoped that this report will stimulate extensive debate on the subject of high-risk sexual offenders and that this debate takes place in political circles, in the relevant professions, and in the general public.

61 Appendices

A Bravehearts Inc Position Paper

B Deakin Law Review, 2004, article by Anthony Gray

C About the Author

62 Appendix A Bereavements Inc Position Paper

POSITION PAPER

The Management and Treatment of Child Sex Offenders Bravehearts Inc•

Protecting Children through Prevention and Therapy

This position statement was authored by; Hetty Johnston - Executive Director and Founder, Bravehearts Inc Carol Ronken - Senior Research and Policy Development Officer, Bravehearts Inc

(Note. This paper is reproduced with the permission of Bravehearts Inc. Some of the formatting and the graphical illustrations were lost in the reproduction process. DB)

63 Table of Contents 1. INTRODUCTION......

2. BACKGROUND LITERATURE AND RESEARCH...... 2.1 The needs for effective intervention ...... 2.2 How do we achieve effective intervention?...... 2.3 Recidivism ......

2.4 Treatment of sex offenders and re-offending...... 2.5 Child sex offenders and re-offending ...... 3. TREATMENT OF CHILD SEX OFFENDERS...... 3.1 Cognitive Behavioural Interventions ...... 3.2 Cognitive Behavioural Programs in Australia ...... (a) NSW - Juvenile Sex Offender Program...... (b) NSW Pre-Trial Diversion Of Offenders Program ...... (c) Western Australia - Sex Offenders Treatment Unit (SOTU)...... (d) Victoria - Adolescent Sex Offender Treatment Program (ASOTP) (e) QLD - Sexual Offenders Treatment Program (SOTP) ...... 3.3 Overall Evaluations of Cognitive Behavioural Interventions.... (a) A Meta-Analysis Of Treatment Studies...... (b) The NSW Child Protection Council’s Conclusions, 1996...... (c) Glaser, 1996 ...... (d) The Woods Royal Commission, 1997 ...... 3.4 Recommendations...... (a) NSW Child Protection Council, 1996...... (b) 5.2 Woods Royal Commission, 1997...... 3.5 Medical Interventions ...... 4. MANAGEMENT OF CHILD SEX OFFENDERS...... 4.1 Community (Post-Prison) Management ...... 4.2 Paedophile Registers...... (a) US Paedophile Registers...... (b) UK Paedophile Registers ...... (c) Australian Registers Of Paedophiles...... (d) The Debate over Public versus Police Registers of Paedophiles 54.3 Supervision In The Community...... 4.4 Communal Custody ...... 4.5 Indefinite Prison Sentences...... 4.6 Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 4.7 Polygraph Tests and Monitoring of Child Sex Offenders ...... Bravehearts Inc 2005 The Management and Treatment of Child Sex Offenders 5. BRAVEHEARTS’ POSITION ON THE MANAGEMENT AND TREATMENT OF

64 CHILD SEX OFFENDERS ...... (a) On treatment programs ...... (b) On surgical and medical castration...... (c) On a Register of Paedophiles...... (d) On Communal Custody Arrangements...... (e) On Indefinite Prison Sentences ...... (f) On Polygraph Testing of Child Sex Offenders ...... 5.2 Bravehearts recommendations for the management and treatment of child sex offenders ...... REFERENCES......

65 1. Introduction In Australia, most paedophiles (more than 90 percent) escape the notice of the authorities (Queensland Crime Commission and Queensland Police Service, 2000). Of those that are actually convicted, only a proportion are treated and managed in a way that is likely to reduce the incidence of their re-offending. There are several sentencing options for convicted paedophiles. Some paedophiles receive prison sentences, perhaps with the requirement to participate in a therapy intervention while in prison. Non-prison sentences include: periodic detention, community service (which often does not involve supervision or access to a treatment program), supervised recognisance (which includes supervision of the offender for up to 3 years), unsupervised recognisance or a fine. In 1992 only 48 percent of those convicted of sexual assaults on children went to prison (cited in NSW Child Protection Council, 1996). A prison sentence by itself is an ineffective deterrent to re-offending for paedophiles, except while they are in prison. However, there are various treatment interventions and management strategies that are being used in an attempt to achieve this end. The objective of this Position Paper is to summarise the information available on these interventions, and to report on their varying degrees of success. The paper also presents Bravehearts’ own Position Statements on the treatment and management of paedophiles.

2. Background Literature and Research 2.1 The needs for effective intervention Individuals who sexually offend against children are an extremely diverse group, and it is not possible to describe the “typical” child molester. They differ in terms of their choice of victim, their criminal backgrounds, their sexual arousal patterns, their social functioning, and their risk of re-offending. Although this list can be lengthened endlessly, it is these features that figure most prominently in the literature. The criminal justice system manages most convicted sex offenders with some combination of incarceration, community supervision, and specialised treatment; the majority are released at some point on probation or parole (either following sentencing or after a period of incarceration in prison or jail). Of the many factors that underscore the critical importance of effectively managing sex offenders on probation, parole, or under other forms of community supervision, none is more compelling than the devastating trauma visited on victims of sexual assault. Components of the trauma associated with sexual assault include shame, self-blame, fear, developmental crises, post traumatic stress disorder, and the threat or actuality of physical violence, terror, and injury. Most profound in its traumatic implications is the violation of trust that occurs if, as in most sexual assault victimisations, offenders are known to victims. Trauma and the length and level of recovery seem linked to trust violation more than to many other factors. Thus, what might be regarded by some as a relatively minor type of sexual assault (e.g., "just fondling") can be extremely traumatic to a victim who trusted the perpetrator. The accelerating influx of sex offenders into the criminal justice system further heightens the need for effective sex offender supervision and management practices, both in and out of prisons.

66 Treatment for sex offenders typically includes “A cognitive behavioral approach, which emphasises changing patterns of thinking related to sexual offending and changing deviant patterns of arousal; …a psycho-educational approach, which stresses increasing the offenders concept of the victim and recognition of responsibility for their offense; and the pharmacological approach, which is based upon the use of medication to reduce arousal” (Center for Sex Offender Management, 2001a). According to the Harvard Mental Health letter, anti-androgen medications are “the only reliable way, proven in controlled studies, to suppress pedophiliac urges.” There is a generally held perception that sex offenders are untreatable 2.2 How do we achieve effective intervention? The heterogeneity of sex offenders must be acknowledged. Although sex offenders are often referred to as a "type" of offender, there are a wide variety of behaviours and offender backgrounds that fall into this classification of criminals (Knight and Prentky, 1990). As mentioned earlier, many sex offenders have histories of assaulting across sex and age groups- recent research (Ahlmeyer, Heil, McKee, and English, 2000) found that these offenders may be even more heterogeneous than previously believed. Criminal justice professionals must continue to expand their understanding of how sex offenders are different from the general criminal population. Although some sex offenders are unique from the general criminal population (e.g., many extrafamilial child molesters), others (e.g., many rapists) possess many of the same characteristics that are associated with recidivism of general criminal behaviour. As criminal justice understanding of these offenders and the factors associated with their behaviour increases, more refined classification needs to be developed and treatment programs need to be redesigned to accommodate these differences. Interventions should be based on the growing body of knowledge about sex offender and general criminal recidivism. Research demonstrates that while sex offenders are much more likely to commit subsequent sexual offences than the general criminal population, they do not exclusively commit sexual offences. Therefore, some aspects of intervention with the general criminal population may have implications for effective management of sex offenders. Quinsey (1998) has recommended that in the absence of definitive knowledge about effective sex offender treatment, the best approach would be to structure interventions around what is known about the treatment of offenders in general. In the realm of interventions with general criminal offenders, there is a growing body of literature that suggests that the cognitive-behavioural approach holds considerable promise (Gendreau and Andrews, 1990). Cognitive-behavioural treatment involves a comprehensive, structured approach based on sexual learning theory using cognitive restructuring methods and behavioural techniques. Behavioural methods are primarily directed at reducing arousal and increasing pro-social skills. The cognitive behavioural approach employs peer groups and educational classes, and uses a variety of counselling theories. This approach suggests that interventions are most effective when they address the criminogenic needs of high-risk offenders (Andrews, 1982). The characteristics of programs that are more likely to be effective with this population include skill-based training, modelling of pro-social behaviors and attitudes, a directive but non-punitive orientation, a focus on modification of precursors to criminal behaviour, and a supervised community component (Quinsey, 1998).

67 Although these program characteristics may be instructive in forming the basis for interventions with sex offenders, treatment approaches must incorporate what is known about this particular group of offenders. A number of characteristics that are typically associated with the recidivism of sex offenders were identified in this document, including: victim age, gender, and relationship to the offender; impulsive, antisocial behaviour; the seriousness of the offence; and the number of previous sex offences. Also, an influential factor in sex offender recidivism is the nature of the offender’s sexual preferences and sexually deviant interests. The discovery and measurement of these interests can serve as a focus for treatment intervention. Dynamic factors should influence individualised interventions. In addition, dynamic factors associated with recidivism should inform the structure of treatment and supervision, as these are characteristics that can be altered. These factors include the formation of positive relationships with peers, stable employment, avoidance of alcohol and drugs, prevention of depression, reduction of deviant sexual arousal, and increase in appropriate sexual preferences, when they exist. Interventions that strive to facilitate development of positive dynamic factors in sex offenders are consistent with cognitive-behavioural or social learning approaches to treatment. Such approaches determine interventions based upon an individualised planning process, utilizing standard assessment instruments to determine an appropriate intervention strategy. As Quinsey (1998: 419) noted "with the exception of antiandrogenic medication or castration, this model is currently the only approach that enjoys any evidence of effectiveness in reducing sexual recidivism." 2.3 Recidivism Reliance on measures of recidivism as reflected through official criminal justice system data obviously omit offences that are not cleared through an arrest or those that are never reported to the police. This distinction is critical in the measurement of recidivism of sex offenders. For a variety of reasons, sexual assault is a vastly underreported crime. The United States National Crime Victimisation Surveys (Bureau of Justice Statistics) conducted in 1994, 1995, and 1998 indicate that only 32 percent (one out of three) of sexual assaults against persons 12 or older are reported to law enforcement. A three-year longitudinal study (Kilpatrick, Edmunds, and Seymour, 1992) of 4,008 adult women found that 84 percent of respondents who identified themselves as rape victims did not report the crime to authorities. (No current studies indicate the rate of reporting for child sexual assault, although it is generally assumed that these assaults are equally underreported.) Many victims are afraid to report sexual assault to the police. They may fear that reporting will lead to the following: - further victimisation by the offender; - other forms of retribution by the offender or by the offender's friends or family; - arrest, prosecution, and incarceration of an offender who may be a family member or friend and on whom the victim or others may depend; - others finding out about the sexual assault (including friends, family members, media, and the public); - not being believed; and - being traumatised by the criminal justice system response. These factors are compounded by the shame and guilt experienced by sexual assault victims, and,

68 for many, a desire to put a tragic experience behind them. Incest victims who have experienced criminal justice involvement are particularly reluctant to report new incest crimes because of the disruption caused to their family. This complex of reasons makes it unlikely that reporting figures will change dramatically in the near future and bring recidivism rates closer to actual re-offence rates. Several studies support the hypothesis that sexual offence recidivism rates are underreported. Marshall and Barbaree (1990) compared official records of a sample of sex offenders with "unofficial" sources of data. They found that the number of subsequent sex offences revealed through unofficial sources was 2.4 times higher than the number that was recorded in official reports. In addition, research using information generated through polygraph examinations on a sample of imprisoned sex offenders with fewer than two known victims (on average), found that these offenders actually had an average of 110 victims and 318 offences (Ahlmeyer, Heil, McKee, and English, 2000). Another polygraph study found a sample of imprisoned sex offenders to have extensive criminal histories, committing sex crimes for an average of 16 years before being caught (Ahlmeyer, English, and Simons, 1999). 2.4 Treatment of sex offenders and re -offending When assessing the efficacy of sex offender treatment, it is vital to recognize that the delivery of treatment occurs within different settings. Those offenders who receive treatment in a community setting are generally assumed to be a different population than those who are treated in institutions. Thus, base rates of re-offending behaviour will differ for these groups prior to treatment participation. Sex offender treatment typically consists of three principal approaches: - the cognitive-behavioural approach, which emphasises changing patterns of thinking that are related to sexual offending and changing deviant patterns of arousal; - the psycho-educational approach, which stresses increasing the offender’s concern for the victim and recognition of responsibility for their offence; and - the pharmacological approach, which is based upon the use of medication to reduce sexual arousal. In practice, these approaches are not mutually exclusive and treatment programs are increasingly utilizing a combination of these techniques. Although there has been a considerable amount of writing on the relative merits of these approaches and about sex offender treatment in general, there is a paucity of evaluative research regarding treatment outcomes. There have been very few studies of sufficient rigour (e.g., employing an experimental or quasi-experimental design) to compare the effects of various treatment approaches or comparing treated to untreated sex offenders (Quinsey, 1998). Using less rigourous evaluation strategies, several studies have evaluated the outcomes of offenders receiving sex offender treatment, compared to a group of offenders not receiving treatment. The results of these studies are mixed. For example, Barbaree and Marshall (1988) found a substantial difference in the recidivism rates of extra-familial child molesters who participated in a community based cognitive-behavioural treatment program, compared to a group of similar offenders who did not receive treatment. Those who participated in treatment had a recidivism rate of 18 percent over a four-year follow-up period, compared to a 43 percent recidivism rate for the

69 non-participating group of offenders. However, no positive effect of treatment was found in several other quasi-experiments involving an institutional behavioural program (Rice, Quinsey, and Harris, 1991) or a milieu therapy approach in an institutional setting (Hanson, Steffy, and Gauthier, 1993). On the other hand, an evaluation of a cognitive-behavioural program that employs an experimental design presented preliminary findings that suggest that participation in this form of treatment may have a modest (though not statistically significant) effect in reducing recidivism. After a follow-up period of 34 months, 8 percent of the offenders in the treatment program had a subsequent sex offence, compared with 13 percent of the control group, who had also volunteered for the program, but were not selected through the random assignment process (Marques, Day, Nelson, and West, 1994). Some studies present optimistic conclusions about the effectiveness of programs that are empirically based, offence-specific, and comprehensive. A 1995 meta-analysis study on sex offender treatment outcome studies found a small, yet significant, treatment effect (Hall, 1995). This meta-analysis included 12 studies with some form of control group. Despite the small number of subjects (1,313), the results indicated an 8 percent reduction in the recidivism rate for sex offenders in the treatment group. (For the purposes of this study, recidivism was measured by additional sexually aggressive behaviour, including official legal charges as well as, in some studies, unofficial data such as self-report.) Recently, Alexander (1999) conducted an analysis of a large group of treatment outcome studies, encompassing nearly 11,000 sex offenders. In this study, data from 79 sex offender treatment studies were combined and reviewed. Results indicated that sex offenders who participated in relapse prevention treatment programs had a combined re-arrest rate of 7.2 percent, compared to 17.6 percent for untreated offenders. The overall re-arrest rate for treated sex offenders in this analysis was 13.2 percent. (Length of follow-up in this analysis varied from less than one year to more than five years. Most studies in this analysis indicated a three to five year follow-up period.) The Association for the Treatment of Sexual Abusers (ATSA) has established a Collaborative Data Research Project with the goals of defining standards for research on treatment, summarising existing research, and promoting high quality evaluations. As part of this project, researchers are conducting a meta-analysis of treatment studies. Included in the meta-analysis are studies that compare treatment groups with some form of a control group (average length of follow-up in these studies was four to five years). Preliminary findings indicate that the overall effect of treatment shows reductions in both sexual recidivism, 10 percent of the treatment subjects to 17 percent of the control group subjects, and general recidivism, 32 percent of the treatment subjects to 51 percent of the control group subjects (Hanson, 2000). Just as it is difficult to arrive at definitive conclusions regarding factors that are related to sex offender recidivism, there are similarly no definitive results regarding the effect of interventions with these offenders. Sex offender treatment programs and the results of treatment outcome studies may vary not only due to their therapeutic approach, but also by the location of the treatment (e.g., community, prison, or psychiatric facility), the seriousness of the offender’s criminal and sex offence history, the degree of self-selection (whether they chose to participate in treatment or were placed in a program), and the dropout rate of offenders from treatment.

70 2.5 Child sex offenders and re -offending Studies of the recidivism of child molesters reveal specific patterns of re-offending across victim types and offender characteristics. A study involving mentally disordered sex offenders compared same-sex and opposite-sex child molesters and incest offenders. Results of this five-year followup study found that same-sex child molesters had the highest rate of previous sex offences (53 percent), as well as the highest reconviction rate for sex crimes (30 percent). In comparison, 43 percent of opposite-sex child molesters had prior sex offences and a reconviction rate for sex crimes of 25 percent, and incest offenders had prior convictions at a rate of 11 percent and a reconviction rate of 6 percent (Sturgeon and Taylor, 1980). Interestingly, the recidivism rate for same-sex child molesters for other crimes against persons was also quite high, with 26 percent having reconvictions for these offences. Similarly, a number of other studies have found that child molesters have relatively high rates of nonsexual offences (Quinsey, 1984). Several studies have involved follow-up of extra-familial child molesters. One such study (Barbaree and Marshall, 1988) included both official and unofficial measures of recidivism (reconviction, new charge, or unofficial record). Using both types of measures, researchers found that 43 percent of these offenders (convicted of sex offences involving victims under the age of 16 years) sexually re-offended within a four-year follow-up period. Those who had a subsequent sex offence differed from those who did not by their use of force in the offence, the number of previous sexual assault victims, and their score on a sexual index that included a phallometric assessment (also referred to as plethysmography: a device used to measure sexual arousal (erectile response) to both appropriate (age appropriate and consenting) and deviant sexual stimulus material). In contrast to other studies of child molesters, this study found no difference in recidivism between opposite-sex and same-sex offenders. In a more recent study (Rice, Quinsey, and Harris, 1991), extra-familial child molesters were followed for an average of six years. During that time, 31 percent had a reconviction for a second sexual offence. Those who committed subsequent sex offences were more likely to have been married, have a personality disorder, and have a more serious sex offence history than those who did not recidivate sexually. In addition, recidivists were more likely to have deviant phallometrically measured sexual preferences (Quinsey, Lalumiere, Rice, and Harris, 1995). In a study utilizing a 24-year follow-up period, victim differences (e.g., gender of the victim) were not found to be associated with the recidivism (defined as those charged with a subsequent sexual offence) of child molesters. This study of 111 extra-familial child molesters found that the number of prior sex offences and sexual preoccupation with children were related to sex offence recidivism (Prentky, Knight, and Lee, 1997). However, the authors of this study noted that the finding of no victim differences may have been due to the fact that the offenders in this study had an average of three prior sex offences before their prison release. Thus, this sample may have had a higher base rate of re-offence than child molesters from the general prison population.

3. Treatment of Child Sex Offenders The overarching aim of intervention with offenders is to protect victims and potential victims; effective intervention must be focused on the offender taking full responsibility for the feelings, thoughts and behaviour that support his offending predicated on the premise that male sexual

71 arousal is controllable. The goal of intervention is to ensure that sex offenders can control their behaviour so that they do not re-offend or sexually abuse others Psychological interventions give offenders skills to help them manage their own behaviour. Cognitive behavioural interventions have largely super-ceded primarily behavioural therapies such as aversion therapy, covert sensitisation, and imaginal desensitisation. 3.1 Cognitive Behavioural Interventions Programs based on cognitive-behavioural principles usually include several components. Most are prison-based, but a few are community-based programs. Offenders are usually treated in groups. A cognitive-behavioural program targets several areas of the offender’s thinking and behaviour (Craissati, 1998): - Breaking down denial and minimisation, - Developing victim empathy, - Challenging justifications and cognitive distortions, - Addressing low self-esteem, fear of adult intimacy and inappropriate assertiveness, - Modifying and controlling deviant sexual fantasies, and - Helping offenders to recognise risky situations, feelings, moods and thoughts, and to develop strategies to prevent relapse. Programs may also deal with relationship issues, basic sex education, anger management, relaxation skills, basic living skills and alcohol and drug awareness (Woods, 1997). Based on their recent study of offender characteristics, Smallbone and Wortley (2000) advocated that, given that many offenders are in fact involved in a broad range of criminal activity, general offender programs are important alternatives. This would allow the specialised programs to concentrate on the more persistent sexual offenders. 3.2 Cognitive Behavioural Programs in Australia In Australia, a range of treatment programs have been adopted in the different states targeting different offender populations. Some programs are for convicted offenders in prison. Others target juvenile offenders. In Australia, there are in-prison treatment programmes for paedophiles in 4 states -NSW, Victoria, Queensland and Victoria. While there have been some in-house studies of these programmes, no formal external evaluations have been carried out (Donato, Shanahan and Higgins, 1999). This section provides information on some of the cognitive behavioural treatment programs for paedophiles. While it is not a comprehensive dossier, it highlights the specific characteristics and achievements of several different kinds of program. (a) NSW - Juvenile Sex Offender Program The NSW Department of Juvenile Justice runs this program for convicted offenders who have committed offences before the age of 18 years. It commenced in 1991/92 and was developed by the NSW Child Protection Council. It is aimed at reducing both sexual and non-sexual offending, helping the offender take responsibility for his actions, and to encourage the development of a positive identity and non-abuse sexuality (Woods, 1997). This service is only available to juvenile offenders who have been charged. As many juvenile

72 offenders are not charged, particularly if they are very young, they may not get access to any form of help (NSW Child Protection Council, 1996). (b) NSW Pre-Trial Diversion Of Offenders Program This was established by the Pre-Trial Diversion of Offenders Act 1985 which applies to a person charged with an offence against their own child, or their spouse / de-facto’s child. It operates over two years and offers a combination of various forms of intervention including both individual and group sessions and conjoint work where appropriate (Woods, 1997). (c) Western Australia - Sex Offenders Treatment Unit (SOTU) This program, which uses cognitive/behavioural and relapse prevention precepts, has been operating in 3 WA jails (Casuarina, Bunbury and Albany) since 1987. The SOTU also provides expert advice to sentencing and releasing authorities on the management and treatment of sex offenders. Participation in the program is mandatory if the offender wishes to be considered for early release. Offenders may participate in programs ranging from a 4-month model to the more intensive 9- month model. Topics covered include victim empathy, human sexuality, anger management and social skills. Every man must state his crime to the group, and talk in detail about it. “One exercise requires them to see the crime through their victim’s eyes, and to write their own script for reading to the group.” The program has a strong focus on the prevention of offending after release and emphasises the avoidance of high-risk situations (The West Australian, 4 Sep 2000; Donato, Shanahan and Higgins, 1999). This program has been evaluated positively. Recidivism rates by male offenders who participated in the intensive and pre-release prison-based program from 1990 to 1995 were encouraging (Woods, 1997). (d) Victoria - Adolescent Sex Offender Treatment Program (ASOTP) The Children’s Protection Society in Victoria established this Program in December 1994. The rationale for its development were: - Sexual abuse by adolescents was a significant problem, - No help was available for these adolescents unless they had been charged and place on order above Probation, - Early intervention would prevent further victims, and - Adolescents are more amenable to treatment, and there is greater potential for their behaviour to be changed, (Flanagan and Hayman-White, 1999) The Program involved group therapy for the participants. Each group member stayed in the group for 12-18 months, and then moved to a Relapse Prevention stage. The Program included a number Page 10 Bravehearts Inc 2005 The Management and Treatment of Child Sex Offenders of modules requiring the client to: take responsibility, gain understanding and insight, develop fantasy control, develop victim empathy, develop social skills, and develop their own Relapse Prevention Plan. The 1999 Report of the Children’s Protection Society analysed the results of the Program for 134 clients. It concluded that, after 12 months: “to the best of our knowledge, no clients who have

73 completed the Program have sexually re-offended” (Flanagan and Hayman-White, 1999). (e) QLD - Sexual Offenders Treatment Program (SOTP) The SOTP is for offenders at the Moreton Correctional Centre. >From its establishment in 1990 to June 2000, this program dealt with more than 350 sexual offenders. It is based on cognitive behavioural precepts and covers relapse prevention, anger management and substance abuse. It also pays attention to special needs groups, including indigenous sexual offenders. The program is designed to take 12 offenders 3 times each year and it takes 12 months to complete. After release, offenders can attend community -based maintenance groups over a period of 20 weeks (Donato, Shanahan and Higgins, 1999, Small bone and Wortley, 2000). 3.3 Overall Evaluations of Cognitive Behavioural Interventions (a) A Meta-Analysis Of Treatment Studies. Hall (1995) summarised the results of 12 studies of “treatments” of sex offenders. The studies that he considered included paedophiles as well as convicted rapists, and exhibitionists. Each of the studies provided a treatment group and a comparison group. Hall concluded that “treatment”

effectively reduced recidivism. With treatment 19% of sex offenders would re-offend, and with no treatment, or the comparison treatment 27 % of sex offenders would re-offend. While the overall results are encouraging, it must be acknowledged that the studies were very heterogeneous in nature, and this detracts from the usefulness of the meta-analysis. The studies used slightly different populations (ie not all paedophiles), different programs (including cognitive, behavioural, hormonal, and group therapies, and psychotherapy and interpersonal therapy) different lengths of treatment, and different lengths of follow-up. Five studies (as starred) compared “treatment” with “no treatment”. Except for the Hanson et al study, re-offending rates were lower in the “treatment” groups (ranging from 6 percent to 32 percent) than in the “no treatment” groups (ranging from 33 percent to 57 percent). (b) The NSW Child Protection Council’s Conclusions, 1996 In their 1996 report on the management of sex offenders, the Council concluded that: “research into the effectiveness of treatment programs has produced ambiguous and conflicting results . . . further research, both short and long term is required before the success of treatment in modifying offenders’ behaviour can confidently be asserted” (NSW Child Protection Council, 1996). (c) Glaser, 1996 More favourably, William Glaser (cited in Woods Royal Commission Report, 1997)) considered that: “some recent work does suggest that, generally, treated sex offenders re-offend less, and also less often than their untreated counterparts” (Woods, 1997). He summarised this work as suggesting that: - "Programs that are more comprehensive in nature tend to be more successful than those with limited aims. - Institutional and community-based programs appear to produce similar results. - The best treatments are those which use cognitive-behavioural principles and/or pharmacological measures, and - There are no consistent predictors of treatment outcome, although motivation for treatment

74 seems very important” (Woods, 1997). (d) The Woods Royal Commission, 1997 The Woods Royal Commission Report was doubtful about the value of treatment of paedophiles. It noted that there was “uncertainty and lack of definitive empirical research as to whether treatment is of long term value in reducing recidivism, let alone any convincing comparative study of the modalities of treatment offered.” (Woods,1997) 3.4 Recommendations The following discussion summarises the recommendations made by the NSW Child Protection Council and the Woods Royal Commission on the treatment programs that should be adopted in Australia for paedophiles. (a) NSW Child Protection Council, 1996 From its analysis of the existing services available to help paedophiles stop offending, the NSW Child Protection Council (1996) came up with preferred policy options in several areas. First, it specified the need to help children under the age of 10 who sexually abuse other children. It observed that there was a wide variation in individual worker’s perceptions of the seriousness of this behaviour. Further, there was “no single organisation with clear responsibility for managing them, and . . no specialist treatment programs for this age-group” (p29). Finally, the Council observed that the legislation governing the activities of the Department of Community Services gave it no power to intervene when a child is a perpetrator. The NSW Child Protection Council’s recommendations for perpetrators in this age group emphasised more comprehensive assessment and treatment services, and changes to the Children (Care and Protection) Act 1987 to include children who are sexual abusers. For juvenile offenders (aged 10 to 17 years) it recommended the expansion of the Juvenile Justice Department’s Juvenile Sex Offenders’ Program within an overall framework of court mandated programs. It considered that, in most cases, and more so than at present, a juvenile perpetrator should be charged, thus acknowledging the seriousness of the crime. In respect of adult offenders, the Council recommended: - A co-ordinated statewide approach, - That following conviction perpetrators should receive either a custodial sentence, or a noncustodial sentence accompanied by a “community-based management program” and “mandatory supervision” in the community, - That after release on parole, offenders must go through a management program, including supervision and monitoring of their access to children, and - That the current 3 year limit on mandatory supervision be extended to 5 to 10 years, and possibly to 10 to 15 years. Their recommendations for treatment programs were (p13): - They must be legally mandated - They must be piloted, monitored and independently evaluated, - They must be staffed by appropriately trained professionals, and - They must be linked to research into long term outcomes. (b) 5.2 Woods Royal Commission, 1997. Its recommendations were:

75 - The establishment of a prison based program - The continuation of the psycho-sexual education programs for offenders serving short sentences - The establishment of accredited community-based programs, including residential and outpatient facilities, for those serving non-custodial sentences and those who voluntarily seek treatment, - Sentencing options to included participation in a “treatment program”; - That Community Service Orders not be a sentencing option; - Monitoring of a program established by the Catholic Church to address sexual abuse by Catholic Priests, - Review and co-ordination of the available services, - Development and extension of services for the adolescent offender, and the intellectually disadvantaged offender, - Changes to the Children (Care and Protection) Act to cover children who are sexual abusers (echoing the NSW Child Protection Council), - Training and research, and - An accreditation system for all services and therapists. 3.5 Medical Interventions Some countries have adopted surgical and medical castration as an intervention with paedophiles and sex offenders generally. Medical castration involves the administration of drugs such as Depo Provera, or MPA, which is a synthetic steroid that counteracts the sex hormones, (i.e. testosterone). Money (1972, cited in Smith and Chapman, 1999) noted that it produces the “loss of the capability of erection and ejaculation . . . a concomitant reduction of the feeling of sexual urge or lust . . . a loss of drive”. Some side effects are: a reduction in fertility, increased blood pressure, weight gain, hot flushes, fatigue, headaches, sleep disturbance, disturbances in sugar and lipid metabolism, and breast enlargement (Woods Royal Commission Report, 1997). Surgical castration has been more widely adopted as a procedure for rapists. For example, from 1935 to 1970 Denmark gave sex offenders the choice of prison or surgical castration. Following criticism the practice was banned, and replaced in 1973 by medical castration accompanied by therapy. Chemical castration of offenders is also practised in Sweden and Germany and the US. By 1998 six US states had adopted some form of biochemical treatment of sex offenders, and five had Bills under consideration (Myers, R., 1998). However, because chemical castration is very expensive ($70,000 per offender for repeat treatments) surgical castration is favoured in some US states. In the states of Florida and Montana there is provision for involuntary surgical castration after a single offence. Sturup (1972, cited in Smith and Chapman, 1999) found recidivism rates of less than 10% in mixed groups that had been surgically castrated. His sample was 900 men who had been castrated between 1929 and 1959, and he concluded that: “castration seems no more harmful to a man’s potential to live a normal life than the alternative of a very long imprisonment”. Some US studies have reported positive results for medical castration. One study reported a recidivism rate of 15% for offenders on this medication, compared with 68% in the control group.

76 Another study reported 18% recidivism by the treatment group, 35% recidivism by those after they stopped taking the medication, and 58 % recidivism by those who received no treatment at all (Myers, R., 1998). The Observer (06/08/01) reported a Texas study showing that the two different kinds of castration produced a repeat offender rate of 2.2 percent compared with 20 to 50 percent for uncastrated paedophiles.

4. Management of Child Sex Offenders 4.1 Community (Post-Prison) Management There is a strong possibility that many convicted paedophiles will re-offend when they are released into the community after a prison sentence, even if they have completed a treatment and behaviour management program. Given this likelihood, there is a need for post-prison follow-up of paedophiles. Community management options that impose the fewest restrictions on a paedophile’s activities pose the greatest risk to children’s safety. Conversely, management options that impose the greatest intrusiveness into the paedophile’s autonomy enhance children’s safety. Various options for the post-prison management of sex-offenders, in terms of this continuum, are discussed as follows. They are: paedophile registers, supervision in the community, communal custody arrangements and indefinite sentencing. 4.2 Paedophile Registers In recent years there has been considerable public debate in the US and the UK about the need for public versus police registers of paedophiles. (a) US Paedophile Registers Since 1994, the US federal government has required states to keep registers of the locations of convicted sex offenders, including child sex offenders, upon their release. This is a condition of receiving federal crime-fighting funding. The legislation (also known as Megan’s Law) also requires that state laws provide for annual re-registration of offenders, continuing for at least 10 years, and for a registered offender’s personal information to be disclosed for the protection of the public (Woods Royal Commission Report, Vol V, 1997). To enhance individual state monitoring of paedophiles, provision was made in 1996 for a national database of registered sex offenders, thereby allowing the FBI to track their movements between states (Woods Royal Commission Report, 1997). Different US states have different versions of this legislation. Some US states make information about sex offenders available to the general public at local police stations. In some states people must write in requesting details about sex offenders, or they can call a toll-free telephone number. In twenty-one US states (most of them in the South and mid-West), sex offenders may have their names, photos and addresses broadcast over the Internet. By mid-2000, New Jersey became the 30th state with some kind of Internet Sex Offender register. In some states the police have the authority to hand out fliers or contact employers in relation to offenders deemed to be especially dangerous (Schoenberg, 1999) In some states, eg Washington and New York, Megan’s law provides for 3 levels of sex offenders and different levels of notification. In the state of New York no information is given out about sex offenders who are graded at the lowest level of risk.

77 In 1999, LA became the first city in the US to send warning letters to residents when an offender moved into their neighbourhood. The notice included a photograph, details of the abuser’s record, and a request to keep an eye on him but to leave him alone. (b) UK Paedophile Registers In the UK, monitoring of convicted paedophiles is provided for under the Sex Offender Orders Act. The Act allows the police and its agencies to monitor and share information on sexual offenders. A person subject to a Sex Offender Order must register his name, aliases and any changes in his name, his date of birth, and his address plus any changes to that address. The Order includes prohibitions on the behaviour of the individual. There is provision for disclosure of information to other professionals and also, potentially, to members of the public. The length of registration varies according to the original sentence, and may be for life (Morrison, 1999). It has been reported that there is 97 percent compliance with these requirements (HOGE, Aug 7, 2000). The loopholes are: - Some offenders fail to register, (some 375 offenders, out of 13,400 failed to register their whereabouts with police (Courier Mail, 25 Oct 2000)), - Some offenders abscond, or disappear, - Individuals can “holiday” for up to 14 days without notifying police, and - Registers cannot be made retrospective. In the year 2000, the UK was moving to put in place its own Megan’s Law, to be known as Sarah’s Law. The draft legislation provided that police and probation officers would be able to set up “risk panels” to assess dangerous released offenders. In each police area, the public will have access via a web-site or other publication to figures about the number of sex offenders locally, but not their names and addresses (Courier Mail, 25 Oct 2000) (c) Australian Registers Of Paedophiles. In Queensland the courts are currently empowered to make Orders against child sex offenders at the time of sentencing, requiring them to keep police informed of their whereabouts after being released. Under Section 19 of the Qld Criminal Code, the Orders apply when a court is: “satisfied that a substantial risk exists that the offender will thereafter commit any further offence of a sexual nature” against a child. In 1997, the Woods Royal Commission recommended that a national register of sex offenders be established. The Commission did not favour the introduction of a “Megan’s Law” in Australia that would provide for a public register of paedophiles, preferring a register and database for the law enforcement agencies. (d) The Debate over Public versus Police Registers of Paedophiles The arguments over a public register of convicted paedophiles compared with a police register have been well canvassed. The main arguments in favour of a public register are as follows: (Woods Royal Commission Report, 1997, Vol V, p 1223). - The public has a right to know that an offender is living nearby, so that they can take precautions. - A public register could be a greater deterrent to new offences as the offender knows he is being monitored. - Victims feel more secure knowing their abuser is being monitored.

78 - Community anger is soothed (Gadher and Harlow, 2000) - Arrests happen more quickly (Gadher and Harlow, 2000) - “Maybe its doesn’t reduce the number of sexual attacks on children, but you can never tell how many shipwrecks a lighthouse has prevented” (pers comm. Roxanne Lieb, in Gadher and Harlow, 2000) The main arguments against a public register are as follows: (the Woods Royal Commission Report, 1997) - The register may inadvertently reveal the name of the victim. - The register may brand innocent members of the paedophile’s family. - There may be victimisation of innocent individuals whose names are confused with those of abusers. - There may be encouragement of community anger, lawlessness. - If there is no grading, so that lower risk offenders’ names are kept off the public register, the public register may “brand” all offenders, reduce their privacy, and subject them to harassment by vigilantes. If offenders are hounded from place to place, the stress may influence them to re-offend. (In the UK a paedophile was hounded out of more than 10 hotels/motels and 3 homes/apartments after authorities notified his neighbours.) - Registered paedophiles more likely to “disappear”. - Released paedophiles are less likely to register. A much higher percentage of paedophiles register in the UK where the registers are not made public. It is much harder for police to keep track of unregistered offenders. - Community notification is of little use in improving the safety of children unless adults accompany children at all times in public. - Offenders may take more drastic steps to cover up their offence. - It is a double-punishment of the offender, and unfair as eg released murderers do not have similar requirements put on them. - The community is lulled into a false sense of security, whereas most paedophiles are never charged or convicted. - Greater expenditure on a public register may be needed (c.f. a police register) that could be otherwise better spent chasing offenders. In 2000 the Observer newspaper reported that Megan’s law had “failed to protect victims and failed to prevent offenders from repeating their crimes”. Further, it considered that it was a “nightmare” for the police to administer properly. 4.3 Supervision In The Community In NSW, the sentence of supervised recognisance provides for some supervision of sex offenders in the community. It allows the Probation Service to monitor the offender’s access to children -in the home, at work and at social settings (NSW Child Protection Council, 1996). The NSW Probation Service also monitors offenders post-prison on parole. In their 1992 study of recidivism by Western Australian sex offenders (Broadhurst and Maller, cited in Smith and Chapman, 1999) found that re-offending was less likely during the period of parole supervision, but that it continued to increase steadily after release. In Maricopa County, Arizona, US, imprisoned sex offenders must agree to a lifetime of

79 community supervision as a condition of their release from prison. This includes a lifetime of probation, attendance at weekly counseling sessions, and submission to routine lie detector tests and unannounced in-home inspections by surveillance officers. Statistics on the program found that between 1993 and 2000 only 6.8 percent of the program’s participants had committed further sex offences (Centre for Sex Offender Management, 2001). This can be compared to the recidivism rate for further sex offences as reported in Hanson and Bussiere’s meta analysis of sex offender recidivism (1998). Supervision of released paedophiles in the community could include electronic bracelets. The US state of Illinois operates an electronic tagging system for sex offenders. Offenders are given 2 years “home detention” and made to wear a computer tracing device for two years after being released from jail (The Observer, 06/08/00) 4.4 Communal Custody An even more restrictive option would be to require paedophiles to live in communal custody -in special guarded communities where no children are allowed. They could lead nearly normal lives, perhaps living with their spouses, and holding a job within the community, but they would be required to wear electronic bracelets and would not be able to leave the confines of the community. Other community residents would be free to come and go as they wished. This option would be considerably less expensive than keeping the offender in prison, or in a mental hospital, and would offer more safety to children than registration systems (Legal Times, 1999, Etzioni, 2000). A trial of a communal custody arrangement recently operated in Nottingham prison in the UK. Offenders deemed to be “a risk to public safety” were kept in prison residential areas. Visitors were subject to police checks and under 18 year-olds and other paedophiles were disallowed entry (Courier Mail, 2 Sep 2000). More widely in the UK, there is a system requiring convicted offenders to live in probation hostels with specific monitoring and supervision. They must also agree to register under the Sex Offender Orders Act for at least 5 years, and comply with other conditions, which may include electronic tagging. The new Criminal Justice Act has also placed a duty on police and probation services to “look after” all convicted sex offenders on their patch. 4.5 Indefinite Prison Sentences In the US, recent legislation provides for violent sexual offenders to be committed to mental hospitals after they have completed their prison sentences. This legislation, known the Sexually Violent Predator Law, or “Stephanie’s Law”, (after the rape and murder of Kansas schoolgirl Stephanie Schmidt) was first introduced in the US state of Kansas. It allows the State to lock up sexual offenders indefinitely, if they are judged to be mentally abnormal and likely to commit “predatory acts of sexual violence”. They are put into state mental hospitals the day they complete their jail sentences. By 1999, 14 other US states had similar laws. This legislation has faced considerable controversy. Although it is acknowledged that, it provides a high degree of public safety against those particular offenders there are several valid arguments against it. The US psychiatric profession argued that the statute’s definitions were being used to turn offenders into mental patients, and that it was “an abuse of the mental health care system” (Legal Times, 1999). It was also argued that the practice strips away the basic rights of offenders,

80 depriving them of their privacy and autonomy (Legal Times, 1999). Other draft legislation being considered by the US Senate in July 2000 - The No Second Chances for Murderers, Rapists or Child Molesters Act, (Aimee’s law) would further discourage US states from releasing murderers, rapists and child molesters. It penalises them financially if released offenders are re-arrested in another state. States that maintain stiff penalties against these offenders are to be financially rewarded. Life sentences for paedophiles were also recently considered in the UK, after the murder of Sarah Payne. In particular, some UK politicians called for life sentences for paedophiles who become repeat offenders (Aug 13, 2000, COMMENT). While repeat offenders convicted of raping children under 13 are already subject to automatic life sentences, it was argued that other serious sexual offences against children should also be subject to a life sentence. In Qld, Section 18 of the Criminal Law Amendment Act (1945) provides for indefinite detention in some cases. Further, Part 10 of the 1992 Penalty and Sentences Act allows the court to impose an indefinite sentence on an offender convicted of ‘violent’ offences, including a range of ‘serious’ sexual offences, if the court is satisfied that the offender is a serious threat to the community. 4.6 Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 Bravehearts successfully advocated for the introduction of indefinite sentencing in Queensland. In 2003 the Queensland Government passed the Dangerous Prisoners (Sexual Offenders) Act 2003. The Act has been demonstrated to work, and has withstood a High Court challenge asserting that it breached the Australian Constitution. It clearly does not. The Dangerous Prisoners (Sexual Offenders) Act 2003 was introduced to address growing community concern about the unsupervised release of convicted sex offenders who were not rehabilitated. The Act enables the Supreme Court to order the post-sentence preventative detention or supervision of prisoners serving sentences for serious sexual offences who pose a significant danger to the community upon release from prison. Since the commencement of the Act on 6th June 2003, officers within the Queensland Department of Justice and Attorney-General and the Department of Corrective Services have worked together to modify the established systems which have been established for the early identification of those sexual offenders who may be suitable for an application under the Dangerous Prisoners (Sexual Offenders) Act 2003. A key element in the system is the Serious Sexual Offenders Review Committee (SSORC), an inter-departmental committee consisting of senior officers from the Department of Justice and Attorney-General, Department of Corrective Services and the Queensland Police Service. SSORC considers all sexual offenders serving more than two years for referral to Crown Law for advice to the Attorney-General on those offenders considered to be an unacceptable risk to the community after release. SSORC considers sexual offenders at least 18 months before those offenders’ earliest release dates from prison. This allows time for the preparation of the necessary psychiatric reports, as well as time for the preliminary and final hearings in court, before the offender can be released. 4.7 Polygraph Tests and Monitoring of Child Sex Offenders The polygraph instrument is a relatively simple device that measures heart rate, blood pressure,

81 respiration and electrodermal changes. These physiological changes are measures without any discomfort to the subject. In respect to child sex offenders, the polygraph is used as a tool to determine compliance with counselling objectives and conditions of probation. Polygraphs are perhaps the most controversial tool in law enforcement. It has been argued that there is no real consensus that polygraph evidence is reliable, with the scientific community polarised on the matter. However, both the reliability and validity of polygraph methodology have continued to improve over the past decade, which has enhanced their accuracy and validity. The purpose of the polygraph examination is to verify the perpetrator’s completeness regarding offence history and compliance with therapeutic directives and terms of supervision (Edson, 1991, Emerick and Dutton, 1993). Thus, when the polygraph is used as a treatment tool it increases the accountability of an offender living in the community. In a 1990 research study, Humbert found that when a polygraph was utilised during the latter part of sex offender treatment, there was a 600% increase in the number of sexual perpetrations reported originally. Taking this information into consideration, the usefulness of the polygraph in sex offender therapy cannot be underestimated when considering that paedophilia “is a disorder maintained largely by the offender’s ability to deny, justify, and rationalise the behaviour” (Hagler, 1995, p.104). The polygraph has become an important tool in treatment and supervision of child sex offenders because it provides independent information about compliance with release conditions and progress in therapeutic programs. In the United States polygraph tests are utilised in parole in 14 states. In addition, in a number of states polygraph testing is required or provided for through state sex offender treatment standards and/or legislation (California Research Bureau, 2004). A number of states also use, or only use, polygraph tests as a tool for post-release monitoring and aftercare (Colorado Department of Corrections, 2000) The use of the post-release polygraph is becoming a valuable tool in the management and treatment of sex offenders. Both Washington and Oregon have been consistently using polygraphs since the early 1980s. Combined with criminal justice supervision and sex offence-specific treatment, polygraph tests are making a substantial contribution to managing the significant risk that sex offenders present to the public (Cooley-Towell, Pasini-Hill and Patrick, 2000). The types of polygraph testing used include: Instant Offence Disclosure - This format is used to determine whether the original crime was actually committed by the subject. Denial or rationalisation of this crime, if actually committed, hinders appropriate treatment from being provided. Sexual History Disclosure - Appropriate treatment can only be successful if the subject's complete sexual history is disclosed to the treating psychologist. This format is used to verify whether the subject has withheld pertinent information from his/her background. Monitoring Testing - An important aspect of the monitoring program is to verify that the subject has not committed new sexual offences while in the program. This format is used for exactly this purpose. Maintenance Testing - This format is used to determine any issue related to parole, probation or therapy of specific interest to the psychologist or parole/probation officer. Some typical uses for this exam would be to determine whether the subject has been in contact with children in violation of parole/probation guidelines, has viewed pornography, has had any contact with a previous

82 victim, or is "grooming" anyone as a new potential victim. (Council on Sex Offender Treatment undated)

5. Bravehearts’ Position on the Management and Treatment of Child Sex Offenders The following summarises Bravehearts’ position on the issues raised in this paper. (a) On treatment programs - Bravehearts agrees that cognitive behavioural interventions may reduce the incidence of offending with some paedophiles, and supports the continuation of their use. - Bravehearts upholds programs that target child sexual abuse by adolescents and children to reduce the incidence of adult paedophilia. - Bravehearts supports the need for comprehensive external evaluation studies of the existing programs in Australia (b) On surgical and medical castration - Bravehearts advocates that further investigation of the options of medical and surgical castration of some paedophiles in Australia as a condition of their prison release be seriously considered. (c) On a Register of Paedophiles - Bravehearts supports the establishment of a national register of paedophiles, one that allows the movement of paedophiles between States to be monitored - Bravehearts supports the establishment of a police rather than a public register of paedophiles. (d) On Communal Custody Arrangements - Bravehearts considers that the option of communal custody arrangements, including the use of electronic bracelets, for paedophiles in Australia should be further studied (e) On Indefinite Prison Sentences - Bravehearts believe the current legal definition of what constitutes ‘violent’ and ‘serious’ in terms of sentencing options needs to be amended to better reflect the serious consequences of child sexual abuse on victim’s lives and to allow for detainment and risk assessment of convicted offenders prior to release. - Bravehearts advocate that where a child sex offender is also a murderer of his victim/s, that a mandatory sentence of ‘Life -never to be ‘released’ should apply. - Bravehearts advocate that the length of detention for child sex offenders be guided by clinical ‘risk assessments of re-offending’ rather than focusing only on punishment. Offenders who have completed their time but who are clinically assessed as posing a risk of re-offending should not be released. - Bravehearts does not support the committal of serious paedophiles to mental hospitals upon their release from a custodial sentence. (f) On Polygraph Testing of Child Sex Offenders - Bravehearts advocates for further investigation into the use of polygraph testing as part of a battery of assessment and monitoring tools for child sex offenders in Australia. - Bravehearts recommends that a trial be put in place, guided by current practice in International jurisdictions.

83 5.2 Bravehearts recommendations for the management and treatment of child sex offenders Successful treatment and management of child sex offenders needs to include the “successful” completion of a rehabilitation program and successful reintegration into the community, and the continuation of rehabilitation and monitoring post-release. It is Bravehearts’ position that all child sex offenders should be sentenced indefinitely with a minimum custodial period set by the judiciary followed by a 10-year mandatory conditional release period and on-going monitoring and treatment. This needs to include individually tailored case management and risk assessment utilising a battery of reliable tools All offenders should only be considered for release on the completion of their term of detention, and/or when they have demonstrated to the satisfaction of a Community Corrections Board that they have successfully completed rehabilitation and their risk of harm to the community is negligible. Mandatory conditions of the release to continue throughout the 10-year post-release period, of any child sex offender need to include: - A clearly defined and communicated management program; - Mandatory post-release treatment programs; - Mandatory, life-long assessment and monitoring (including periodic psychometric and psychophysiological testing); - The abolishment of any rights to refuse to be interviewed or have residences searched by police in relation to crime investigations; - Conditions that prevent released child sex offenders from associating with other known offenders; - Mandatory requirement for all child sex offenders to immediately notify their community corrections worker (who in turn must be required to immediately notify the Queensland Police Service) of any change of address or employment and any short or long-term vacations; - Conditions that restrict the offender’s access to children, including, but not limited to working with children; and - The right to return the offender to a custodial setting should any conditions of release be breached; in addition to - Any other conditions deemed appropriate for the individual offender.

References ------(1999). A place for predators. Legal Times (25 Jan) Ahlmeyer, S., English, K., & Simons, D. (1999). The impact of polygraphy on admissions of crossover offending behavior in adult sexual offenders. Presentation at the Association for the Treatment of Sexual Abusers 18th Annual Research and Treatment Conference, Lake Buena Vista, FL. Ahlmeyer, S., Heil, P., McKee, B., & English, K. (2000). The impact of polygraphy on admissions of victims and offences in adult sexual offenders. Sexual Abuse: A Journal of Research and Treatment, 12 (2), 123-138.

84 Alexander, M.A. (1999). Sexual offender treatment efficacy revisited. Sexual Abuse: A Journal of Research and Treatment, 11 (2), 101-117. Andrews, D. A. (1982). The supervision of offenders: Identifying and gaining control over the factors which make a difference. Ottawa: Solicitor General of Canada. Barbaree, H.E. & Marshall, W.L. (1988). Deviant sexual arousal, offense history, and demographic variables as predictors of reoffense among child molesters. Behavioral Sciences and the Law, 6 (2), 267-280. Beckett, R. (1994). Cognitive-behavioural Treatment of Sex Offenders. In T. Morrison, M. Erooga & R.C. Beckett (eds.) Sexual Offending Against Children Assessment and Treatment of Male Abusers. London: Routledge. Booth, M (2000). Plan to Allow Web posting of sex offenders: data advances. New Jersey Law Journal (1 June). California Research Bureau (2004). Community Treatment and Supervision of Sex Offenders: How it’s done across the Country and in California. Sacramento [CA]: California Research Bureau. Center for Sex Offender Management (2001a). Recidivism of Sex Offenders. Silver Spring [MD]: Centre for Sex Offender Management. Center for Sex Offender Management (2001b). Case Studies on the Center for Sex Offender Management’s National Resource Sites (2nd ed). Silver Spring[MD]: Centre for Sex Offender Management. Collcutt, D & Elliott, J. (2000). Inside the Witch Hunt. Focus (13 August) Coddington, D. (1996). The New Zealand Paedophile and Sex Offender Index. Coddington, D. (1997). The Australian Paedophile and Sex Offender Index. Colorado Department of Corrections (2000). State Sex Offender Treatment Programs: A 50 State Survey. Colorado Springs: The Department of Corrections. Cooley-Towell, S., Pasini-Hill D., & Patrick, D. (2000). The value of the post-conviction polygraph: The importance of sanctions. Polygraph 29(1): 6-19. Council of Sex Offender Treatment (undated). Use of the Polygraph in the Assessment and Treatment of Sex Offenders. Craissati, J. (1998). Child Sexual Abusers A Community Treatment Approach. Psychology Press. Donato, R., Shanahan, M. & Higgins, R. (1999). A cost-benefit analysis of child sex offender treatment programs for male offenders in correctional services. Adelaide: Child Protection Research Group, University of South Australia. Page 23 Bravehearts Inc 2005 The Management and Treatment of Child Sex Offenders Edson, C. (1991). Sex Offender Treatment. Medford, OR: Department of Corrections Edwards, M. (1998). Treatment for Sex Offenders. Paper presented to the 1998 Australian Institute of Criminology Conference Eldridge, H. (1998). Therapist Guide for Maintaining Change. California: Sage Publications. Emerick, R. & Dutton, W. (1993). The effect of polygraph on the self-report of adolescent sex offenders: Implications for risk assessment. Annals of Sex Research, 6: 83-103.

85 Etzioni, A. (2000). Fence Off Sex Offenders Who Prey on Kids. USA Today (16 May). Flanagan, K. & Hayman-White, K. (1999). Adolescent Sex Offender Treatment Program. Children’s Protection Society Inc. Gadher, D. & Harlow, J. (2000). The Punishment according to Megan (30 July, unknown UK newspaper). Gendreau, P. & Andrews, D.A. (1990). What the meta-analysis of the offender treatment literature tell us about what works. Canadian Journal of Criminology, 32: 173-184. Hagler, H. (1995). Polygraph as a measure of progress in the assessment, treatment, and surveillance of sex offenders. Sexual Addiction and Compulsivity, 2. Hague, W. (2000). Life for Paedophiles Must Be an Option. Comment (13 August) Hall, G. (1995). Sexual offender recidivism revisited: a meta-analysis of recent treatment studies. Journal of Consulting and Clinical Psychology, 63 (5): 802-809 Hanson, R.K. (2000). The effectiveness of treatment for sexual offenders: Report of the Association for the Treatment of Sexual Abusers Collaborative Data Research Committee. Presentation at the Association for the Treatment of Sexual Abusers 19th Annual Research and Treatment Conference, San Diego, CA. Hanson, R.K. & Bussiere, M. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66 (2): 348-362. Hanson, R.K., Steffy, R.A., & Gauthier, R. (1993). Long-term recidivism of child molesters. Journal of Consulting and Criminal Psychology, 61 (4): 646-652. Harvard Mental Health Letter (2004, January) Humbert, G. (1995). Polygraph usage in the State of Oregon. Report to the Oregon Polygraph Licensing Advisory Committee. Kilpatrick, D.G., Edmunds, C.N., & Seymour, A. (1992). Rape in America: A report to the nation. Washington, D.C.: National Center for Victims of Crime and Crime Victims Research and Treatment Center. McConaghy, N. (1990). Assessment and treatment of sex offenders: the Prince of Wales Programme. Australian and New Zealand Journal of Psychiatry, 24: 175-181 McGovern, C. (1995). No help behind bars for paedophiles. Alberta Report/ Western Report. Maginnis,R. L. (1994). Policing Sex Offenders: an Update. Unidentified Internet source Marques, J.K., Day, D.M., Nelson, C., & West, M.A. (1994). Effects of cognitive-behavioral treatment on sex offenders’ recidivism: Preliminary results of a longitudinal study. Criminal Justice and Behaviour, 21: 28-54. Marshall, W.L. & Barbaree, H.E. (1990). Outcomes of comprehensive cognitive-behavioral treatment programs. In W.L. Marshall, D.R. Laws, & H.E. Barbaree (Eds.), Handbook of sexual assault: Issues, theories, and treatment of the offender. New York: Plenum. Morrison, T. (1999). Policy and management perspectives. In M. Erooga & J. Masson (eds) Children and Young People who sexually Abuse Others, Challenges and Responses. London: Routledge. Myers, R (1998). Stovall Backs castration Bill. The Topeka Capital Journal, (21 Feb). NSW Child Protection Council (1996). Managing Sex Offenders

86 Prentky, R., Knight, R., & Lee, A. (1997). Risk factors associated with recidivism among extrafamilial child molesters. Journal of Consulting and Clinical Psychology, 65 (1): 141- 149. Prentky, R., Lee, A., Knight, R., & Cerce, D. (1997). Recidivism rates among child molesters and rapists: A methodological analysis. Law and Human Behavior, 21: 635-659. Print, B. & O’Callaghan, D. (1999). Working in groups with young men who have sexually abused others. In M. Erooga & J. Masson (eds) Children and Young People who sexually Abuse Others, Challenges and Responses. London: Routledge. Queensland Crime Commission and Queensland Police Service (2000). Project Axis. Brisbane: Queensland Crime Commission. Quinsey, V.L. (1998). Treatment of sex offenders. In M. Tonry (ed.), The handbook of crime and punishment. New York: Oxford Press. Quinsey, V.L. (1984). Sexual aggression: Studies of offenders against women. In D.N. Weisstub (Ed.). Law and Mental Health: International Perspectives (pp. 140-172), Vol. 2. New York: Pergamon. Quinsey, V.L., Lalumiere, M.L., Rice, M.E., & Harris, G.T. (1995). Predicting sexual offences. In J.C. Campbell (Ed.), Assessing dangerousness: Violence by sexual offenders, batterers, and child abusers (pp. 114-137). Thousand Oaks, CA: Sage. Rice, M.E., Quinsey, V.L., & Harris, G.T. (1991). Sexual recidivism among child molesters released from a maximum security institution. Journal of Consulting and Clinical Psychology, 59, 381-386. Salmon, M “The No Second Chances for Murderers, Rapists or Child Molesters Act, HR 4258, or Aimees Law, Statement of Replican Matt Salmon Schoenberg, T. (1999) What Hath Megan’s Law Wrought?Legal Times, 20 July, 1999 Smallbone, S and Wortley, R. (2000) Child Sexual Abuse in Queensland: Offender Characteristics and Modus Operandi. Qld Crime Commission and Qld Police Service. Smith, M and Chapman, C. (1999) An Investigation into Paedophilia City Counselling Centre, Brisbane. Sturgeon, V.H. & Taylor, J. (1980). Report of a five-year follow-up study of mentally disordered sex offenders released from Atascadero State Hospital in 1973. Criminal Justice Journal, 4, 31-63. Woods (1997) Final Report Vol V: the Pedophile Inquiry. Royal Commission into NSW Police Service, Aug, 1997

87 Appendix B Deakin Law Review, 2004, article by Anthony Gray

DETAINING FUTURE DANGEROUS OFFENDERS: DANGEROUS LAW

ANTHONY GRAY[*]

I. INTRODUCTION

The Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is not the first,[1] and is unlikely to be the last, example of ‘preventive detention’ legislation in Australia. Preventive detention legislation is considered to be legislation that at its base allows a court to order that a person be detained either for a further defined or indefinite period, based on an assessment that the person is likely to re-offend upon release from prison.[2] It is certainly not free from controversy, with many believing it to be a fundamental premise of criminal law that a person can only be dealt with as a criminal because of past behaviour.[3]

There are many further issues discussed in different models of preventive detention legislation which will be noted during this article in passing. However, the above definition captures the common element of this kind of regulation, passed by parliaments seeking to protect the community from individuals thought to pose a danger to society.[4]

II. OUTLINE OF THE 2003 DANGEROUS PRISONERS (SEXUAL OFFENDERS) ACT

It is necessary to point out the basic features of the latest example of preventive detention legislation. It has been found to be constitutionally valid by the Queensland Court of Appeal, however an appeal to the High Court against that decision has been heard but not decided at the time of writing. It will be submitted with respect that the High Court should find the legislation to be invalid as a breach of the principle of separation of powers, and set aside the Queensland Court of Appeal decision.[5]

The Act’s objectives are stated in s 3 to be twofold: (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation. The legislation allows the Queensland Attorney-General to apply to the Supreme Court for an order in respect of a ‘prisoner’ as defined by the Act. A prisoner for these purposes is a prisoner detained in custody who is serving a period of imprisonment for a ‘serious sexual offence’,[6] whether the person was sentenced to the term of period of imprisonment before or after the section commences. In other words, the legislation can have retrospective effect. A serious sexual offence is an offence of a sexual nature involving violence or against children.[7]

The most important provision is s 13, which applies where, upon application by the Attorney-General, the court is satisfied the prison is a ‘serious danger to the community’. This is defined in s 13(2), to mean where there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, or released without supervision. The court must be satisfied of this risk ‘by acceptable, cogent evidence and to a high degree of probability’. The court is to have regard to many factors in making this assessment, including psychiatrists’ reports and other expert opinion in relation to the offender.[8] The court can consider the prisoner’s criminal history, including any pattern of criminal behaviour, participation in rehabilitation programs, the need to protect the community from the risk of re-offending, and ‘any other relevant matter’.

The court can order that the person be detained for an indefinite period, or that the prisoner be released, whether upon terms of supervision or not. The court is reminded that in deciding whether or not to make an order in relation to the prisoner, the paramount consideration is the protection of the community.[9] A continuing detention order must be reviewed at least annually. At the review, the court must again be satisfied by 88 ‘acceptable, cogent evidence and to a high degree of probability’ that the evidence is sufficient to justify the prisoner’s continued detention. Again, the paramount consideration is the protection of the community. The Act allows the prisoner to be heard at the original hearing and any review. Either the prisoner or Attorney can appeal any decision made under the Act.[10]

There are clear similarities, and some differences, between this 2003 Queensland legislation, and legislation passed by the New South Wales and Victorian Parliaments in the early 1990s.[11] The New South Wales legislation will be mentioned here, because it was found to be unconstitutional by the High Court in the Kable decision, in a judgment with clear implications for the Dangerous Prisoners (Sexual Offenders) Act 2003. The Queensland Court of Appeal considered the Kable decision in some detail in assessing the constitutionality of the Queensland equivalent legislation.

III. DETAIL AND CONSTITUTIONALITY OF NEW SOUTH WALES PREVENTIVE DETENTION LEGISLATION

The New South Wales Community Protection Act 1994 allowed that State’s Attorney-General to apply to the Supreme Court for an order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds, that the person is ‘more likely than not to commit a serious act of violence, and that it is appropriate, for the protection of a particular person or persons generally, that the person be held in custody’. The maximum period of detention was stated as six months, with more than one application possible in relation to a particular person. Section 5(1)(a) of the Act defined a serious act of violence as an act of violence that has a ‘real likelihood of causing death or serious injury to the other person or that involves sexual assault’. The court could order that the person be detained upon such conditions as it saw fit. The proceedings were described as civil in nature, with the Court determining matters according to the civil standard of the balance of probabilities.[12]

While the Act stated that the ordinary rules of evidence would apply, the Act allowed the Court, in assessing the application, to consider a broad range of evidence, including ordering the production of medical or psychiatric records, police records, and the court could order a medical examination of the person. It went on to specifically allow hearsay evidence to be admitted to the Court in this kind of proceeding (s 17).

Upon its passage through the New South Wales Parliament, the legislation was amended so that the only person against whom an order could be made was Gregory Kable. Section 3 of the Act stated that the object of the Act was to protect the community by providing for the preventive detention of that offender. It was specified that in interpreting the Act, the need to protect the community was paramount. Kable had been jailed for the unlawful killing of his wife, pleading guilty to manslaughter on the ground of diminished responsibility. He was sentenced to a minimum term of four years and an additional term of one year and four months. While in prison, Kable had made written threats to the family members of his dead wife that upon his release from prison, he would commit serious offences against them.

Kable challenged the legislation on constitutional grounds, arguing that the Act breached the principle of separation of powers by requiring a judicial body to perform a non-judicial function. His argument was successful 4-2 in the High Court.

All judges agreed with the findings of previous courts[13] that no formal separation of powers existed in State Constitutions in Australia. Thus, prima facie there would be no difficulty in asking a State court to carry out non-judicial functions. However, the majority found that since the New South Wales Supreme Court had been vested with federal jurisdiction, and was exercising federal jurisdiction when hearing this matter,[14] it became subject to rules about federal jurisdiction contained in the Australian Constitution, including those which did embody a formal separation of powers between the legislative, executive and judicial functions.[15]

Most importantly for present purposes, all members of the majority expressed grave concerns as to the nature of these proceedings. As Toohey J noted, the Act required the Supreme Court to participate in the making of a detention order where no breach of the criminal law was alleged and there had been no determination of guilt.[16] Gaudron J found that asking a court to form an opinion as to whether an offender was more likely than not to re-offend was

89 the antithesis of the judicial process, one of the central purposes of which (was) to protect the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts that have been properly ascertained.[17]

Gummow J stated that the kind of power given to the Supreme Court in this instance, not consequent on any finding of guilt, was ‘repugnant to the judicial process in a fundamental degree’.[18] The court also concluded that the legislation undermined confidence in the judiciary,[19] and undermined the notion that courts in Australia were an integrated system, requiring consistent application of principles,[20] including the principle of separation of powers.

IV. QUEENSLAND COURT OF APPEAL DECISION ON QUEENSLAND’S PREVENTIVE DETENTION LAW

Queensland’s preventive detention legislation, the Dangerous Prisoners (Sexual Offenders) Act, was applied in respect of Robert Fardon in 2003. Fardon had been convicted in 1989 of rape, sodomy and assault occasioning bodily harm, and sentenced to 14 years’ imprisonment. His term expired on 29 June 2003. Responding to concerns that Fardon may re-offend upon release, the Queensland Attorney-General applied under the newly passed Dangerous Offenders Act for a Supreme Court order that Fardon be detained indefinitely under the legislation. A preliminary order for Fardon’s detention was made pursuant to the Act on 27 June 2003. Fardon appealed the decision, arguing the legislation was unconstitutional. His legal representatives relied heavily on the High Court’s decision in Kable. By a majority of 2-1, the Queensland Court of Appeal rejected Fardon’s arguments. The judgment and reasoning will now be considered.

A. Reasoning of Majority Justices (de Jersey CJ and Williams JA) The majority contended that there were fundamental differences between the legislation impugned in Kable and the Queensland legislation before the Court. De Jersey CJ pointed out these differences.[21] While the legislation in Kable (and indeed in the matter of David) was confined to one prisoner only, the Queensland legislation applied more generally to any prisoner convicted of a ‘serious sexual offence’. The rules of evidence applied, at least to some degree.[22] Rather than the ‘balance of probabilities’ standard of proof required in the New South Wales law, the Queensland law required proof of the person likely re-offending ‘by acceptable, cogent evidence and to a high degree of probability.[23] As (arguably) another point of distinction between Kable and the current case, de Jersey CJ noted that ‘the criterion informing the exercise of the discretion is community protection rather than punishment’.[24] His Honour also pointed out that the Act conferred genuine discretionary power on the Court to decide upon the appropriate course of action, once an application had been made. The Queensland law provided for the possibility of supervised release, or release upon condition. The New South Wales legislation permitted only a choice between detention or release.

From these differences proceeded a discussion of the purpose of incarceration under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Queensland). De Jersey CJ noted that the Act provided that the paramount consideration affecting the exercise of discretion under the Act was the need to ensure community protection. Why, he asked, could the community not be lawfully protected from dangerous, violent criminals who were nonetheless sane.[25] He viewed this kind of legislation as non-punitive in nature, with the object of protecting the community rather than punishing the offender.[26] His Honour referred to the High Court’s recognition in Lim[27] that in some exceptional cases, a person may be detained in custody for reasons that are not punitive. Examples include the arrest and detention of a person accused of, but not convicted of, a crime. Involuntary detention in cases of infectious disease or mental illness was also seen as non-punitive detention.[28] De Jersey CJ noted the comment of McHugh J in Lim that ‘although detention under a law of the Parliament is ordinary characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non-punitive object’.[29] Further, Gummow J in Kruger[30] commented that the question whether a power to detain persons or to take them into custody is to be characterized as punitive in nature, so as to attract the operation of Ch III (containing the separation of powers) depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed.[31]

90 De Jersey CJ (with Williams JA concurring)[32] found that the Queensland legislation challenged in this case should similarly be seen as non-punitive in nature. The exceptional categories mentioned in Lim and Kruger were not closed, and just as it extends to the protection of the community from the mentally ill, there is no reason why, by analogy, it should not also be seen to include community protection against violent criminals who, although sane, would, if at liberty, constitute a serious danger to the community. The process established by the Act sufficiently conforms to normal judicial processes (emphasis added).[33]

Williams JA claimed further that there was a link between the prisoner’s conviction for the serious sexual offence, and the making of an order pursuant to the Act. As His Honour said: ‘... there is a clear link between adjudgement of criminal guilt and the making of an order under the Act. That reasoning, to my mind, reinforces the conclusion that the legislation is not caught by the principles derived from Kable’.[34]

B. Reasoning of Minority Justice (McMurdo P) McMurdo P noted that Queensland courts had power to order the indefinite detention of an offender, at the time of sentencing them for the original offence.[35] However, the legislation challenged in this case was different. It allowed a judge to order that a person who has satisfied the penalty imposed at sentence be detained for a further time without any further determination of criminal guilt. She specifically rejected the suggestion of Williams JA that the order under the Sexual Prisoners legislation was part of the sentencing process for the original offence.[36]

McMurdo P conceded there were many differences between the legislation impugned in Kable, and the Queensland legislation, as the majority had noted. However, the legislation was based on a prediction about future conduct, something that was ‘notoriously unreliable’, and included only those serving a period of imprisonment for a serious sexual offence, not all members of the community who may also be a serious danger in the absence of detention or supervision.[37]

Although the standard of proof in the Queensland legislation was higher than that in the impugned New South Wales law in Kable, it still was not at the criminal standard of beyond reasonable doubt. She dismissed the majority’s claim that this legislation provided the court with more discretion than the legislation considered in Kable. McMurdo P concluded it was difficult to envisage a situation where if reports supported the conclusion that the prisoner was a serious danger to society if not detained, a judge would refuse to make an order. She found that despite the use of permissive words such as ‘may’, the legislation did significantly curtail true judicial discretion. The scheme undermined the ordinary safeguards of the judicial process.[38] Her Honour dismissed the majority’s view that the legislation was non-punitive in nature and justified on community protection grounds. Such a view had not commended itself to the High Court in Kable. The exceptional cases where involuntary detention had been permitted for non-punitive reasons were not the same as this kind of law, and could not be used to support it.[39]

McMurdo P conclusion was clear: The Act empowers judges to deprive these prisoners of their liberty, not because they have committed an offence or breached the civil law, but because opinions have been formed, probably on material which would not be admissible in a legal proceeding and on a standard other than beyond reasonable doubt, that they will commit a serious sexual offence as defined if released from custody, or at least unsupervised custody, after completing their sentenced terms of imprisonment. The Act requires the Supreme Court of Queensland to predict dangerousness by way of, at best, an informed guess, something which is notoriously unreliable and which must be based largely on opinions of psychiatrists. Despite the efforts of the Queensland Parliament to distinguish the scheme under the Act from the invalid New South Wales Act in Kable by numerous cosmetic changes, it remains the “antithesis of the judicial process” which is to protect the individual from the arbitrary interference of rights other than in consequence of the fair and impartial application of the law to properly ascertained facts ... Ordinary reasonable members of the public could well reasonably see the Act as making the Supreme Court of Queensland a party to, and responsible for, implementing the political decisions of the executive government that unpopular prisoners should be imprisoned beyond the expiry of their sentenced terms of imprisonment without the benefit of the ordinary processes of law. The powers conferred ... compromise the integrity of this Court and of the judicial system.[40]

91 It is submitted with respect that the dissenting judgment of McMurdo P is correct and should be adopted. C. Critique of Majority Opinion It is submitted with respect that several points made by the majority in the Queensland Court of Appeal’s judgment in Fardon are open to strong challenge.

1. The Act applies to a particular group of offenders rather than an individual It is certainly true that a difference between, on the one hand, the New South Wales and the Victorian preventive detention legislation, and on the other, the Queensland legislation, that the former applied only to one named individual, while the latter applies more generally to offenders convicted previously of a serious sexual offence. However, the issue surely is the relevance of this distinction to the issues at hand.

Legislation that applies only to a particular named individual, reminiscent of the historical Bills of Attainder, may be seen as an even more objectionable law, highly offensive to the rule of law. Legislation that applies to a category of offender is less offensive in this way. However, these points did not form part of the reasoning in Kable and their relevance is questionable when seeking to relevantly distinguish the Queensland from the New South Wales legislation. Specifically, the objection in Kable was to legislation which asked a judicial body to perform a non-judicial power, namely to determine whether an individual was more likely than not to commit a further offence. The legislation offended against the principle of separation of powers.[41] This mixture of judicial and non-judicial functions was unacceptable, tending to undermine public confidence in the judiciary. Surely, it is the mixture of judicial and non-judicial functions that is unacceptable, and that objection applies regardless of whether the legislation applies to one individual or a class of individuals. It is submitted that while this is a difference between the New South Wales law and the Queensland law, it is not a material difference in relation to the ratio decidendi of the Kable case.

2. The court must be satisfied ‘to a high degree of probability’ that the offender will re-offend, relying on ‘cogent and acceptable evidence’. The Kable legislation did not include these safeguards, requiring only that the court be satisfied that the offender was more likely than not to re-offend.

It is true that the standard of proof in the Queensland law is higher than that contained in the impugned New South Wales law. However, the required standard of proof remains below the level of reasonable doubt, the level preferred by McHugh J in Kable.[42] The evidentiary requirements of the Queensland Act do not reflect ordinary rules of evidence, allowing any ‘acceptable’ evidence to be heard. It is not clear what is meant by acceptable in this context, as it is not defined, but there is no reason to suppose that traditional rules regarding the use of hearsay evidence, as one example, will apply. If that is what was intended, it would have been easy to state so.

The applicable rules of evidence to these proceedings are relevant because they assist in characterizing the kind of power being exercised. The departure from the ordinary rules of evidence in judicial proceedings under this legislation reinforces the conclusion that the proceedings are not at all judicial in nature, and that the court is being asked to exercise a power that is clearly non-judicial in nature, in a way that is offensive to Chapter III of the Australian Constitution.

3. The Unpredictability of Future Behaviour A fundamental difficulty with this legislation is its implication that it is possible to predict with a (legally) satisfactory degree of accuracy whether or not a person may re-offend. However, some judges have expressed strong reservations about such an ability:

No doubt the whole question of prediction of behaviour in the future is a most difficult one. Its very difficulty is in itself a potent reason against undue weight in sentencing being given to the protection of the community from what is predicted as the likely future violence of the convicted person. Predictions as to future violence, even when based upon extensive clinical investigation by teams of experienced psychiatrists, have recently been condemned as prone to very significant degrees of error when matched against actuality.[43]

Interestingly, historically Justices of the Peace in England were also given power to prevent crime they considered was likely to occur in their areas of jurisdiction. These justices had power to act against persons who had not yet committed any criminal act (at least none which had been detected), but were nevertheless regarded

92 as dangerous. Many circumstances were to be considered by these justices in making their determination of likely future dangerousness. These included:

(a) his parents, if they were wicked, and given to the same kind of fault; (b) his ability of body, if strong and swift, or weak and sickly, not likely to doe the act; (c) his nature ... a quarreler, pilferer or bloody-minded; (d) his trade, for if a man liveth idely (sic) or vagrant ... it is a good cause to arrest him upon suspicion, if there has been any felony committed; (e) his company; (f) his course of life; (g) whether he be of evil fame or report; (h) whether he hath committed the like offense (sic) before or if he hath a pardon, or been acquitted of felony before .... or beene (sic) outlawed for felony.[44] Respected academics in the field have reached similar conclusions. Dershowitz conducted a study on all the published literature on predictions of anti-social behaviour. He concluded that: psychiatrists are rather inaccurate predictors, inaccurate in an absolute sense, and even less accurate when compared with other professionals ... Even more significant for legal purposes: it seems psychiatrists are particularly prone to one type of error – over-prediction.[45]

The point is that a psychiatrist asked to write a report predicting future behaviour, on the basis of which a court will decide whether or not to release a past sexual offender, is likely to be conservative. No psychiatrist would wish to be known as the one who recommended that a prisoner be released, only for that prisoner to later re- offend. As a result, they are likely to take the safer option, and order that the person be kept in custody.[46] This is, it is submitted, particularly so when the relevant Queensland legislation directs the court that the protection of the community is the paramount consideration in assessing the applications.

Some psychiatrists use lists of factors to help determine whether or not an offender may be dangerous in future. Some authors of a study on dangerous sexual offenders suggest the following factors:

(a) brutality sustained in childhood; (b) bedwetting, firesetting, and cruelty to animals; (c) assorted delinquent acts during puberty; (d) escalation of the sexual offences; (e) inter-related criminality with sexual offences; (f) sustained excitement prior to the act and at the time of the offence; (g) lack of concern for the victim; (h) bizarre fantasies with minor offences; (i) explosive outbursts; (j) absence of psychosis; (k) absence of alcohol consumption; (l) high IQ. Each factor is graded on a 10 point scale, and a score of over 90 is ‘indicative of a very high degree of dangerousness’.[47] One could also point to the consequences of the United States Supreme Court decision in Baxstrom v Herold, which found it was unconstitutional to retain indefinitely prisoners who had completed their sentence but not released because they were deemed to be dangerous.[48] As a result, many prisoners who had been detained indefinitely on the basis they were considered dangerous were released. Of those released, less than 5% committed further crimes upon release.[49]

It is also suggested that in assessing dangerousness, psychiatrists are likely to be affected by various factors which are not themselves actually indicators of dangerousness. Klein, a sociologist, in his study found that psychiatric labeling was largely an outcome of the setting in which the patient is seen, the social class of the patient determined, and the biasing effect of other clinicians’ diagnoses. He found that if other psychiatrists saw a renowned psychiatrist state that a patient was psychotic, they were likely to diagnose the patient as mentally ill, even though his behaviour was not consistent with the diagnosis.[50]

4. The Object of the Detention 93 De Jersey CJ in Fardon sought to justify the legislation by claiming that, rather than being punitive in nature, the object of the detention was community protection.[51] He asked why the community could not be protected from dangerous criminals, otherwise due for release, who were nevertheless sane.

Several comments may be offered by way of response. First, in answer to His Honour’s rhetorical question, the obvious answer is that it is a strong tradition in our legal system, and a very sound tradition, that a sane person can only be held in incarceration because of something he/she has done, not because of something they may do. A person ordered to serve a criminal sentence for a defined period has a legitimate expectation that they will be released at the conclusion of the period, provided they have committed no further offences while in prison. It is offensive to the principle of separation of powers and of the rule of law, two hallmarks of our legal system, that a judge may order that a person be detained indefinitely because of something that may happen in future. The logical conclusion to the suggestion that the community is entitled to be protected against someone who may be dangerous but sane is to imprison citizens shown by testing to be prone to criminal behaviour, but who have not been charged with any offence (or indeed committed any crime). It is trite to point out how dangerous this suggestion is.[52] Williams responds to the non-punitive argument well:

The argument is put that if the system of incarceration can be classified as civil and non-punitive in nature, then the legal and ethical objections to detention based other than on desert are removed. Such an argument seems mistaken. The essence of incarceration from a punitive point of view is the deprivation of liberty, and this is in no way lessened by claiming the incarceration is civil ... such (preventive) incarceration is ... properly classified as a form of preventive detention akin to imprisonment. To make use of less harsh sounding labels is merely to seek to escape from the gravity of the issues inevitably involved in arguing in support of preventive detention.[53]

Second, it may seem capricious to state that the object of the detention here is community protection rather than punishment.[54] It is submitted that in most cases (at least those involving violent behaviour), in deciding on an appropriate criminal punishment, sentencing courts will have regard to the need for community protection as a relevant factor.[55] Certainly the Penalties and Sentences Act 1992 (Qld) directs the court, when considering punishment, to consider community protection as an element.[56] It is submitted to be artificial to divorce the two and argue that imprisonment is not punishment because it is based on community protection (or what is the same thing, crime prevention). They are not mutually exclusive, and to the contrary are in fact closely linked. As Oliver Wendell Holmes Jr said it, ‘prevention is the chief and only universal purpose of punishment’.[57] A person being retained in custody, to prevent them committing future crimes and to protect society, is still being punished. The detention is punitive.[58]

It is possible that the legislation was regarded as being justified on community protection grounds, rather than punishment grounds, because there is authority denying the power of a court to punish for future behaviour.[59] Dicey’s view of the rule of law, that a person ‘may be punished for a breach of law, but he can be punished for nothing else’[60] is likely also to be inconsistent with punishment for future behaviour.

However, whatever the rationale, it is submitted to be unacceptable reasoning. It certainly did not commend itself to the High Court in the Kable decision, when considering the Community Protection Act 1995 (emphasis added). The legislation was still rightly seen as punitive in nature, although it may have been motivated by a genuine desire to protect the community. The genuine desire to protect the community did not change the (unconstitutional) nature of the law in Kable, and it is submitted it should not either in the Queensland Act of similar ilk.[61]

V. CONCLUSION

It is hoped that the High Court will declare the legislation to be unconstitutional. It is submitted this would be consistent with its previous decision in Kable, with the doctrine of separation of powers, and with the fundamental human right that a person should only be dealt with as a criminal because of something they have done in the past, not something they may do in the future. Bearing in mind the inaccuracy in predicting future behaviour, this kind of preventive detention legislation, whilst no doubt electorally popular, surely cannot stand.

[*] Lecturer, Department of Law, University of Southern Queensland.[]

94 1 Historians Pollock and Maitland trace the use of preventive criminal measures at least back to the Anglo- Saxon period in England. A person suspected, but not convicted, of committing past crimes could be arrested, and treated as an outlaw unless they gave security for their future good behaviour: Sir Frederick Pollock and Frederic Maitland, The History of English Law Before The Time of Edward I (1968) 27, referred to in Alan Dershowitz, ‘The Origins of Preventive Confinement in Anglo-American Law – Part I: The English Experience’ (1974) 43 University of Cincinnati Law Review 1,13.

[2] John Rawls spoke of a system of ‘telishment’, establishing an institution and allowing its officials to subject any individual they thought fit to deprivation if that (in their opinion) would advance the public good. He criticized such a model thus:

Once one realizes that one is involved in setting up an institution, one sees that the hazards are very great. For example, what check is there on the officials? How is one to tell whether or not their actions are authorized? ... How is one to avoid giving anything short of complete discretion to the authorities to telish anyone they like? ... it is obvious that people will come to have a very different attitude towards their penal system when telishment is adjoined to it. They will be uncertain as to whether a convicted man has been punished or telished. They will wonder whether or not they should feel sorry for him. They will wonder whether the same fate won’t at any time fall on them. If one pictures how such an institution would actually work, and the enormous risks involved in it, it seems clear that it would serve no useful purpose (‘Two Concepts of Rules’ in Harry Acton (ed), The Philosophy of Punishment (1969) 113).

Though telishment allowed a person never convicted of a crime to be detained, while the Queensland model applies only to convicted sexual offenders, it is thought the objections raised above to such a system are equally applicable to the current version.

[3] For example, according to Lord Denning: ‘It would be contrary to all principle for a man to be punished, not for what he has already done, but for what he may hereafter do’ (Everett v Ribbands (1952) 2 QB 198, 206), and Justice Jackson said that: ‘The jailing of persons by the courts because of anticipated but as yet uncommitted crimes could not be reconciled with traditional American law. Imprisonment to protect society from predicted unconsummated offences is unprecedented in this country and fraught with danger of excess’ (Williamson v United States (1950) 184 F 2d 280, 282 (2nd Cir)). To like effect, see Francis Wharton in his Treatise on Criminal Law (1932 12th ed) commenting that the idea of punishing a person before they have committed a crime ‘contradicts one of the fundamental maxims of English common law, by which not a tendency to crime, but simply crime itself, can be made the subject of a criminal issue’, Jerome Hall’s comment that ‘ours is a legal order which does not recognize prevention as a sufficient ground for punishment’ (Jerome Hall General Principles of Criminal Law (1960) 219, and Pollock and Maitland (above n 1, 507) commenting ‘ancient law has as a general rule no punishment for those who have tried to do harm but have not done it’ (recognizing a historical exception involving plots to kill the monarch).

[4] Fairall suggests preventive detention laws may be inconsistent with the right to equality of treatment before the law, guaranteed by Article 14.1 of the International Covenant on Civil and Political Rights, to which Australia is a signatory: Paul Fairall, ‘Violent Offenders and Community Protection in Victoria – The Gary David Experience’ (1993) 17 Criminal Law Journal 40, 46-47.

[5] An alternative argument against preventive detention may be that the general power of the State Parliament to pass laws for the peace, welfare and good government of the State, including preventive detention laws, should be subject to some restraints by reference to ‘rights deeply rooted in our democratic system of government and the common law’, an argument at least raised and left open by the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, referring to dicta in New Zealand case law Drivers v Road Carriers (1982) 1 NZLR 374, 390, Fraser v State Services Commission (1984) 1 NZLR 116, 121, and Taylor v New Zealand Poultry Board (1984) 1 NZLR 394, 398. This argument has not been developed further because the High Court has not addressed the issue again, apart from the judgment of Dawson J in Kable v The Director of Public Prosecutions for New South Wales (1997) 189 CLR 51,76 (‘Kable’) expressing disapproval of the suggestion.

[6] Or a term of imprisonment that includes a term of imprisonment for a serious sexual offence. [7] Schedule Dictionary, regardless whether the offence was committed in Queensland or not. 95 [8] Section 13(4) refers to any other medical, psychiatric or psychological or other assessment relating to the prisoner, information indicating whether there is a propensity for the offender to commit serious sexual offences in future, whether there is any pattern of offending behaviour by the offender, efforts by the prisoner to address their offending behaviour including participation in rehabilitation programs, the prisoner’s antecedents and criminal history, the risk that the prisoner will commit another serious sexual offence if released, the need to protect the community from this risk, and any other relevant matter.

[9] Section 13(6). [10] Section 31. [11] The Victorian Community Protection Act 1990 (Vic) applied to one named individual, Gary David. David had been jailed for two offences of attempted murder, and sentenced to 14 years’ imprisonment. While in jail, he had threatened large-scale massacres, to poison the town water supply, had assaulted more than 15 inmates and guards in jail, and had self-mutilated on several occasions. Experts diagnosed David as having a borderline personality disorder and antisocial personality disorder (a psychopath). This condition did not fall within the definition of mental illness in relevant legislation. As he was due for imminent release from prison, the Victorian Parliament passed the above legislation to allow David to be detained for a further period. The constitutional validity of this legislation was never tested, the Victorian Parliament eventually repealing the law. See David Wood, ‘A One Man Dangerous Offenders Statute: The Community Protection Act 1990 (Vic)’ (1990) 17 Melbourne University Law Review 497, David Wood, ‘Dangerous Offenders and the Morality of Protective Sentencing’ [1988] Criminal Law Review 424, David Wood, ‘Dangerous Offenders and Civil Detention’ (1989) 13 Criminal Law Journal 224, and Robert Williams ‘Psychopathy, Mental Illness and Preventive Detention: Issues Arising From the David Case’ (1990) 16 Monash University Law Review 161.

[12] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 20. [13] Clyne v East (1967) 68 SR (NSW) 385, Builders’ Labourers Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372, Kable (1997) 189 CLR 51, 92 (Toohey J), 118 (McHugh J).

[14] Because Kable raised the question of its constitutionality. [15] Where the court differed was on the issue whether the clear separation of powers at federal level had been ‘drawn down’ into State courts exercising federal jurisdiction. The majority said it had been, the minority said it had not.

[16] Kable (1997) 189 CLR 51, 98 (Toohey J). [17] Kable (1997) 189 CLR 51, 106-7 (Gaudron J); to like effect, see 122 (McHugh J). [18] Kable (1997) 189 CLR 51, 132 (Gummow J). [19] The majority also applied an aspect of incompatibility the court had mentioned in Grollo v Palmer (1995) 184 CLR 348, 365, that of ‘the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution is diminished’. Kable (1997) 189 CLR 51, 98 (Toohey J) found that this was the effect of the Community Protection Act in this case, by asking the court to exercise non-judicial functions. Gaudron J elaborated on this point:

The integrity of the courts depends on their acting in accordance with the judicial process and, in no small measure, on the maintenance of public confidence in that process. Particularly, that is so in relation to criminal proceedings which involve the most important of all judicial functions, namely the determination of the guilt or innocence of persons accused of criminal offences. Public confidence cannot be maintained in the courts and their criminal processes if ... the courts are required to deprive persons of their liberty, not on the basis that they have breached any law, but on the basis that an opinion is formed, by reference to material which may or may not be admissible in legal proceedings, that on the balance of probabilities, they may do so. (Kable (1997) 189 CLR 51, 107).

Gaudron J claimed the legislation made a mockery of the judicial process and inevitably weakened public confidence in it (108); see to like effect McHugh J (121-122) and Gummow J (134).

[20] Gaudron J noted that the Federal Constitution required States to maintain at least one court to exercise the judicial power of the Commonwealth. Given that Federal courts exercising judicial power of the Commonwealth were required to observe the separation of powers, so too were State courts exercising judicial power of the Commonwealth. This was because the Constitution did not allow or imply that it ‘permits different 96 grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament’ (103); to like effect McHugh J (116-117).

[21] De Jersey CJ commented: The constraint affirmed in Kable does not invalidate this legislation, substantially for the reasons assigned by the learned primary Judge in the course of his contrasting of the New South Wales and Queensland legislative regimes. The principal features of significance are the general application of the Queensland Act, the conferring of genuine discretionary power, that the criterion informing the exercise of the discretion is community protection rather than punishment, and the applicability to the court process of the rules of evidence. A-G (Qld) v Fardon [2003] QCA 416, [21]

. [22] Section 13 allows the court to consider a broad variety of evidence, including psychiatric and other medical reports, the prisoner’s criminal history including any pattern of violent behaviour, whether the prisoner has participated in any rehabilitation programs, the risk of re-offending, the need to protect members of the community from that risk, and ‘any other relevant factor’.

[23] Dangerous Prisoners (Sexual Offenders) Act 2003, 16(3)(a). [24] A-G (Qld) v Fardon [2003] QCA 416, [21]. [25]Ibid [30-31]. [26] It is possible that the legislation was regarded as being justified on community protection grounds, rather than punishment grounds, because there is authority denying the power of a court to punish for future behaviour. In declaring that the crime of conspiracy was unknown to the English law, Lord Simon of Glaisdale in Director of Public Prosecutions v Withers [1975] AC 842, 870 stated that ‘in effect, the concept enjoins an English criminal court to act like a “people’s court” in a totalitarian regime, and to declare punishable and to punish conduct held at large to be “extremely injurious to the public”’. As Dicey would similarly provide, ‘Englishmen are ruled by law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else’ (Albert Dicey, An Introduction to the Study of the Law of the Constitution (1885) 202).

[27] Chu Kheng Lim v Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1. [28] The traditional powers of the Parliament to punish for contempt, to detain an ‘alien’ while their application to remain in Australia was processed and of military tribunals to punish for breach of military discipline were also noted as exceptional cases.

[29] Chu Kheng Lim v Minister for Immigration and Local Government and Ethnic Affairs (1992) 176 CLR 1, 71. [30] Kruger and Ors v The Commonwealth; Bray and Ors v The Commonwealth (1997) 190 CLR 1. [31] Ibid 161-162. [32] A-G (Qld) v Fardon [2003] QCA 416, [101]. [33] Ibid [42]. There are many words the author might use to describe this regime, but ‘normal judicial processes’ are not among them.

[34] Ibid [103]. With respect, the author does not see how the ‘clear link between adjudgement of criminal guilt and the making of an order under the Act’ can possibly distinguish Kable from the present case. There was an obvious link between Kable’s original crime and the reasons why he was kept in prison indefinitely, just as there is a link in the current case between Fardon’s original crime and the reasons why the Attorney-General wished to keep him in prison. The author fails to see any relevant point of differentiation whatsoever.

[35] Ibid [78]. One example is Part 10 of the Penalties and Sentences Act 1992 (Qld) applicable where the offender is a serious danger to the community. Further, Criminal Law Amendment Act 1945 (Qld) s 18 allows for the detention of a person ‘during Her Majesty’s pleasure’ once convicted of a sexual offence involving a child under the age of 16.

[36] Ibid [82]. [37] Ibid [84]. [38] Ibid [87]. 97 [39] Ibid [88]. [40] Ibid [91]. [41] According to its architect Charles Montesquie there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive powers, the judge might behave with all the violence of an oppressor. Miserable indeed would be the case, were the same man, or the same body ... to exercise those three powers .. Most kingdoms of Europe enjoy a moderate government, because the prince who is invested with (legislative and executive powers) leaves the third to his subjects. In Turky (sic), where these three powers are united in the Sultan’s person, the subjects groan under the weight of tyranny and oppression”. He added that the judgments should “always be conformable to the exact letter of the law. Were they to be the private opinion of the judge, people would then live in society without knowing exactly the obligations it lays them under . (The Spirit of Laws (1757) Book XI Chapter 6 paras [4]-[7], [17]).

[42] A-G (Qld) v Fardon [2003] QCA 416, [120].

[43] Stephen J in Veen v The Queen (1979) 143 CLR 458, 464 , citing Norval Morris, ‘The Future of Imprisonment: Towards a Punitive Philosophy’ (1974) 72 Michigan Law Review 1161, 1164-1173; and to like effect in the Canadian context: ‘the evidence of a psychiatrist... is at times highly speculative and in certain instances a lay person is in as good a position to make predictions as to future dangerousness’ (Re Moore and the Queen (1984) 10 C.C.C (3d) (Ont S.C.)) Vincent J of the Victorian Supreme Court and Chairman of the Adult Parole Board noted that: ‘once a community starts to decide for itself that it will incarcerate an individual not for something that he has done but because of something it is feared he might do, the community is moving into dangerous waters’ (Social Development Committee, Strategies to Deal With Persons With Severe Personality Disorder who Pose a Threat to Public Safety (May 1990) 50.

[44] Michael Dalton, The Countrey Justice (1661), cited in Dershowitz, above n 1, 25.

[45] Alan Dershowitz, ‘The Law of Dangerousness – Some Fictions About Predictions’ (1970) 23 Journal of Legal Education 26, 46; see to like effect Henry Steadman, ‘Psychiatry, Dangerousness and the Repetitively Violent Offender’ (1968) 69 Journal of Criminal Law and Criminology 226, Henry Steadman, ‘We Can’t Predict Who is Dangerous’ (1975) 8 Psychology Today 22, Henry Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ [1976] Rutgers Law Review 1074; John Monahan and Jeffrey Cummings ‘Social Policy Implications of the Inability to Predict Violence’ (1975) 31 Journal of Social Issues 152, Anthony Bottoms, ‘Reflections on the Renaissance of Dangerousness’ (1977) 16 Howard Journal of Penology and Crime Prevention 494, Jean Floud, ‘Dangerousness and Criminal Justice’ (1982) 22 British Journal of Criminology 213, cf Nigel Walker, ‘Dangerous People’ (1978) 1 International Journal of Law and Psychiatry 37.

[46] As Grant succinctly puts it, ‘psychiatrists’ false positives are locked up in prisons or hospitals. Their false negatives may come back to haunt them in headlines or even law suits’, and cites a United States decision where a psychiatrist was found negligent after releasing a patient without warning his future victim that he may be dangerous (Tarasoff v Regents of the University of California (1978) 551 P 2d 334): Isabel Grant, ‘Dangerous Offenders’ (1985) 9 Dalhousie Law Journal 348, 364.

[47] Paul Marcus ‘Dangerous Sexual Offender Project’ (1969) 11 Canadian Journal of Correction 198, 204. A similar study by Abrahamsen included on the list ‘spelling errors, loneliness and excessive truancy’: David Abrahamsen, Our Violent Society (1970) 218.

[48] Another example of the striking down of such a law on constitutional grounds is People v Frontozak (1938) 281 NW 534 .

[49] Henry Steadman ‘The Baxstrom Patients: Background and Outcomes’ (1971) 3 Seminars on Psychiatry 376, ‘Follow Up on Baxtrom Patients’ (1973) 130 American Journal of Psychiatry 317, 319; see also James Garofalo, ‘Diagnosis and Treatment of Dangerousness’ (1972) 18 Crime And Delinquency.371, 389 and Bernard Diamond ‘The Psychiatric Prediction of Dangerousness’ (1974) 123 University of Pennsylvania Law Review 439, 447. 98

[50] Harry Klein, ‘The Dangerousness of Dangerous Offender Legislation’ (1976) 18 Canadian Journal of Crime and Corrections 109, 112; see also Ernst Wenk ‘Can Violence Be Predicted?’ (1972) 18 Crime and Delinquency 393, 401.

[51] It is pertinent to recall Justice Brandeis’ comments here: ‘Experience would teach us to be most on our guard to protect liberty when the government’s purposes are beneficent ... The greatest danger to liberty lies in the insidious encroachment of men of zeal, well-meaning but without understanding’ (Ormstead v United States (1928) 277 US 438).

[52] The lesson is also apparent in non-legal literature, including Lewis Carroll’s Alice in Wonderland. “There’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday; and of course the crime comes last of all.”

“Suppose he never commits the crime?” asked Alice. “That would be all the better, wouldn’t it” the Queen responded. Alice felt there was no denying that. “Of course it would be all the better,” she said. “But it wouldn’t be all the better his being punished.”

“You’re wrong ...” said the Queen. “Were you ever punished?” “Only for faults,” said Alice. “And you were all the better for it, I know!” the Queen said triumphantly. “Yes, but then I had done the things I was punished for,” said Alice: “That makes all the difference.” “But if you hadn’t done them,” the Queen said, “that would have been better still: better, and better, and better!” Her voice went higher with each “better”, till it got quite to a squeak ...

Alice thought, “There’s a mistake somewhere...” (cited in Grant, above n 45, 382).

[53] Williams, above n 11, 179. The court in People v Frontczak (1938) 281 NW 534,537 was not impressed with the argument either when considering the validity of legislation allowing the continuing detention of a convicted sex offender who had served his term: ‘Under this Act (the) defendant is under sentence for an overt sex deviation offense (sic) and, as a potential like offender, it is sought to keep him in confinement under exercise of the police power. The police power, under such circumstances, is not a civil proceeding, comparable to that in cases of insane persons’.

[54] Fairall is similarly unimpressed with the argument: ‘The argument that preventive detention is not intended as, and therefore does not amount to, punishment may be dismissed out of hand. People are not sent to prison for punishment, but as punishment’: Fairall, above n 4, 50.

[55] See the High Court’s comments in Veen v The Queen (1979) 143 CLR 458, Veen v The Queen (No 2)(1988) 164 CLR 465 .. For example, Mason J explained in Veen (No 1) 143 CLR 458, 468 that

The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order that it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty.

[56] Section 9(1)(e) of the Act, referring to sentencing guidelines, includes as an object ‘to protect the Queensland community from the offender’. Section 9(4) states that when dealing with a violent offender, the court is to have regard to (a) the risk to the community if a custodial sentence is not imposed; and (b) the need to protect the community from risk.

[57] Oliver Wendel Holmes Jr, The Common Law (1881) 46.

[58] As Holmes (ibid) put it 99 when a man buys matches to fire a haystack, or starts on a journey meaning to murder at the end of it, there is still a considerable chance that he will change his mind before he comes to the point ... If a man starts from Boston to Cambridge for the purpose of committing a murder when he gets there, but is stopped and ... goes home, he is no more punishable than if he had sat in his chair and resolved to shoot somebody, but on second thoughts had given up the notion (Ibid 68-69).

It is submitted that similar arguments can be made against pre-emptive preventive sentencing such as contained in the Queensland Act under consideration.

[59] In declaring that the crime of conspiracy was unknown to the English law, Lord Simon of Glaisdale in Director of Public Prosecutions v Withers [1975] AC 842, 870 stated that ‘in effect, the concept enjoins an English criminal court to act like a ‘people’s court’ in a totalitarian regime, and to declare punishable and to punish conduct held at large to be ‘extremely injurious to the public’.

[60] Dicey, above n 26, 202. [61] The author respectfully agrees with the conclusion of McMurdo P in Fardon that the legislation was punitive in nature (at [90]), contrary to the conclusion of the majority justices. It is not similar at all to the small number of cases where the Court has justified involuntary detention on non-punitive grounds, such as arrest prior to trial, persons suffering an infectious disease, or persons who are insane.

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100 Appendix C About the Author

Professor David Biles is a criminologist with degrees in psychology, education and sociology. In early 1994 he took early retirement from the position of Deputy Director of the Australian Institute of Criminology in Canberra. For three years (1988 - 1990) he was seconded from the Institute to the position of Consultant Criminologist and Head of Research with the Royal Commission into Aboriginal Deaths in Custody.

Before moving to Canberra in 1974, David was a Senior Lecturer in Criminology at the University of Melbourne. Before that he was a Lecturer in Educational Psychology after a period of eleven years as an Education Officer in four different prisons in Victoria.

He has served two terms as the President of the Australian and New Zealand Society of Criminology and has also served as a member on many government committees including: * the Criminal Law and Penal Methods Reform Committee of South Australia, * the Committee of Inquiry into the Victoria Police, * the New South Wales Government Working Party on Victims of Crime, * the Sentencing Alternatives Committee of Victoria, and * the ACT Corrections Review Committee.

He has published well over one hundred articles and research reports in academic journals both in Australia and overseas. He has also edited seven books, the most recent of which deal with correctional issues and deaths in custody.

From 1989 to 2004, David was the the Coordinator and Rapporteur for the annual Asian and Pacific Conference of Correctional Administrators (www.apcca.org). He is the Chair of the ACT Crime Prevention Committee, Chair of the ACT Police Consultative Board, and serves as a member of other committees in the ACT. He also works as a private consultant. His recent consultancies have included: * The United Nations, preparation of congress discussion guide * AusAID, member of team reviewing corrective services in Papua New Guinea * Adviser to Australasian Correctional Management Pty Ltd, * Charles Sturt University, consultant in policing and justice studies * ACT Government, evaluation of early closing of nightclubs and taverns * Victorian Government, study of deaths in community corrections * Prison inspections : Malaysia, Thailand, Vietnam, China, Singapore, Mongolia, Fiji and Tonga * Expert witness in Victorian Coronial Inquiry into Port Phillip Prison and in other civil cases * NSW Corrective Service Industries, study of success indicators *Australian Defence Forces, review of military detention policy and procedures * Review of Therapeutic Programs in Prisons managed by GEO Aust Pty Ltd.

In 1998 he was appointed as a Professorial Associate to Charles Sturt University (for whom he teaches courses in correctional policy and practice in Asia and the Pacific), in 1999 he was elected to the position of Vice Chair for Oceania of the International Corrections and Prisons Association, and in 2000 he was made a member of the Advisory Board of the Centre for Applied Philosophy and Public Ethics of Charles Sturt University. In 2003 he was awarded the Order of Australia Medal for his “services to criminology; as a teacher, a researcher and an adviser.” and in 2004 he was awarded an honorary doctorate by Charles Sturt University for his “outstanding contribution to criminology and his significant contribution to the university”. 25 Kidston Crescent Curtin ACT 2605 Australia. Tel: +61 (0)2 6281 5637 Fax: +61 (0)2 6232 4463 E-mail: [email protected] Alternative tel: +61 (0)2 4474 3183 Mobile: 0418 266 355

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