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Sentence and Release Options for High-Risk Sexual Offenders

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Sentence and Release Options for High-Risk Sexual Offenders Report prepared for the ACT Government on Sentence and Release Options for High-Risk Sexual Offenders by Professor David Biles OAM Consultant Criminologist and Professorial Associate, Charles Sturt University September 2005 1 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 3 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
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