High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper January 2007 Sentencing Advisory Council Published by the Sentencing Advisory Council Melbourne Victoria Australia. © Copyright State of Victoria, Sentencing Advisory Council, January 2007. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth). National Library of Australia Cataloguing-in-Publication Victoria. Sentencing Advisory Council. High-risk offenders : post-sentence supervision and detention: discussion and options paper. Bibliography. Includes index. ISBN 9781921100079. ISBN 1 921100 07 9. 1. Recidivists - Victoria. 2. Detention of persons - Victoria. 3. Preventive detention - Victoria. 4. Sentences (Criminal procedure) - Victoria. 5. Criminal behavior, Prediction of - Victoria. I. McSherry, Bernadette. II. Title. 364.309945 Also published on www.sentencingcouncil.vic.gov.au Authorised by the Sentencing Advisory Council, 4/436 Lonsdale Street, Melbourne. Printed by Big Print, 520 Collins Street, Melbourne. The publications of the Sentencing Advisory Council follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citations (2nd edn, 2002). ii High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper Contents Preface ix Abbreviations xii Have Your Say xiv Warning to Readers xiv Questions xv Chapter 1: Background 1 Our Terms of Reference 1 The Council’s Approach 2 Issues Paper, Community Focus Groups and Recidivism Paper 2 Discussion and Options Paper 3 The Next Step 4 Chapter 2: Purposes of Post-Sentence Schemes 5 What is Post-Sentence Supervision or Detention? 5 The Purposes of Post-Sentence Schemes 5 Introduction 5 Issues 7 Approaches to Post-Sentence Schemes 8 Introduction 8 Issues 9 Chapter 3: Determining Risk: Who are ‘High-Risk’ Offenders? 13 Introduction 13 What do we know about High-Risk Offenders? 15 The Problems of Identifying which Offenders are at Risk of Reoffending 17 Risk of What? 20 At What Stage Should Risk be Assessed? 22 Who Should Assess Risk? 24 Treatment as a Means of Managing Risk 25 Sex Offender Programs 25 Violent Offender Treatment Programs in Victoria 31 Issues 31 Chapter 4: The Current Framework 35 Introduction 35 At Sentence: Sentencing Options 35 Australian Approaches 35 Canada 41 The United Kingdom 43 Scotland 44 New Zealand 45 iii Issues 46 During Sentence: Managing High-Risk Offenders in Victoria 48 Introduction 48 Parole 48 Issues 49 Post-Sentence: Current Options in Victoria 49 Post-Sentence Extended Supervision: An Overview 50 Preventive Offences 52 Sex Offender Registration 54 Options for Reform 55 Introduction 55 Continuing Detention and Other Australian Approaches 55 United Kingdom Multi-Agency Public Protection Arrangements (MAPPA) and Sex Offences Prevention Orders (SOPO). 58 Scottish Risk Management Authority 61 Canada 62 Community Responses to Managing Risk: Circles of Support and Accountability 63 Dangerous and Severe Personality Disorder Program (UK) 64 Conclusion 66 Chapter 5: The Merit of Continuing Detention 67 Introduction 67 The Relevance of Risk Assessment to Merit 67 Determining Risk 67 Issues 68 The Effects of Continuing Detention on Treatment 71 Constitutional Issues 72 Is Continuing Detention Compatible with Human Rights? 76 Due Process 80 The Principles of Proportionality and Finality in Sentencing 80 ‘Rule of Law’ Principles 81 Procedural Fairness 82 Double Jeopardy and the Principle against Double Punishment 83 Criminal Detention Must Only Follow a Finding of Guilt 85 The Principle Against Retrospective Laws 86 Does Continuing Detention Meet Its Objectives? 87 Is Continuing Detention the Best Use of Resources? 88 Is There a Need for Continuing Detention? 93 Chapter 6: Structure of a Supervision and Detention Scheme 97 Introduction 97 Implications of the Victorian Charter of Human Rights and Responsibilities 97 Compatibility with Human Rights 97 Is the Restriction or Degree of Interference Reasonable and Demonstrably Justified in the Circumstances? 99 A Discussion Model 100 Introduction 100 A New Post-Sentence Supervision and Detention Scheme? 102 iv High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper Purpose 108 Australian Approaches 108 Issues 108 Discussion Model 109 Eligibile Offenders 109 Introduction 109 Victorian Extended Supervision Scheme 110 Queensland, Western Australia and New South Wales 110 International Approaches 111 Consultation 111 Issues 113 Discussion Model 115 The Application Process: Who, When and How? 116 Introduction 116 When Should an Application be Made and By Whom? 117 Process for Screening Eligible Cases 118 Who Should Make the Order? 127 Directions Hearings and Interim Orders 129 Discussion Model 132 Legal Test, Risk Assessment and Evidence 133 Overview 133 Risk Assessment and Relevant Evidence 134 Legal Test, Onus and Standard of Proof 140 Issues 144 Discussion Model 148 Other Criteria—Principle of Reciprocal Obligation 149 Duration of Continuing Detention Orders 151 Introduction 151 Victorian Extended Supervision Scheme 151 Queensland, Western Australia and New South Wales 151 International Approaches 152 Consultation 152 Discussion Model 153 Conditions of Orders 155 Victorian Extended Supervision Scheme 155 Queensland, Western Australia and New South Wales 156 International Approaches 158 Discussion Model 159 Accommodation 161 Introduction 161 Offenders on Supervision Orders 161 Offenders on Detention Orders 163 Discussion Model 166 Least Restrictive Alternative 167 The Management of Offenders 168 Offenders on Supervision Orders 168 Offenders on Detention Orders 170 v An Integrated Approach? 170 Consultation 171 Discussion Model 175 Variation, Review and Appeal 177 Introduction 177 Variation 177 Review 179 Appeal 183 New Zealand 185 Issues 186 Discussion Model 187 Breach Provisions 189 Victorian Extended Supervision Scheme 189 Queensland, Western Australia and New South Wales 190 International Approaches 191 Discussion Model 191 Additional Safeguards 192 Suppression Orders 192 Transparency and Reporting 193 Right to be Heard and to Legal Representation 197 Are Any Additional Safeguards Required? 199 Victims of Crime and Continuing Detention 200 Victorian Extended Supervision Scheme 200 Western Australia 201 New Zealand 201 Submissions 201 Issues 202 Discussion Model 202 Chapter 7: Relationship with Existing Schemes 203 Introduction 203 Consultation 203 Indefinite Sentences and Serious Offender Provisions 203 Extended Supervision Orders 203 Discussion Model 204 Indefinite Sentences 204 Serious Offender Provisions 206 Extended Supervision Orders 206 References 207 Appendix 1: Case Studies 213 Appendix 2: Tables 216 Appendix 3: Submissions 221 vi High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper List of Figures & Tables Figure 1: Offences in High-Risk Offender Schemes 14 Figure 2: Multi-Agency Public Protection Panel for Level 3 Offenders 59 Figure 3: The Three Key Principles of the CoSA Program 64 Figure 4: Discussion Model—Flowchart 104 Figure 5: Discussion Model 105 Figure 6: Cases considered, referred and applications made and granted under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) since 6 June 2003 120 Figure 7: Cases considered, referred and applications made and granted under the Dangerous Sexual Offenders Act 2006 (WA) since commencement. 122 Figure 8: Process for Identifying Eligible Offenders 123 Table 1: The Purposes of Post-Sentence Supervision or Detention Schemes 6 Table 2: Sentencing Options in Vic, Qld, WA and NSW 36 Table 3: Application Process for Supervision or Continuing Detention 117 Table 4: Evidence Relevant to Whether the Legal Test for Making an Order is Satisfied 133 Table 5: Criteria, Onus and Standard of Proof for Supervision or Detention Orders 134 Table 6: Duration of Extended Supervision and Continuing Detention Schemes 151 Table 7: Variation of Supervision and Continuing Detention Orders 177 Table 8: Review of Supervision or Continuing Detention Orders 179 Table 9: Appeal of Supervision or Continuing Detention Orders 183 Table 10: Legislation Enabling Indefinite Detention 216 Table 11: Australian Parole Provisions 216 Table 12: Provisions for the Post-sentence Supervision of Sex-Offenders 216 Table 13: Australian National Child (Sex) Offender Register 217 Table 14: Successful applications for supervision or detention orders (reported decisions) in QLD 218 Table 15: Relevant Offences under Victorian Indefinite Sentencing and Post-Sentence Extended Supervision Schemes 219 vii viii High-Risk Offenders: Post-Sentence Supervision and Detention Discussion and Options Paper Preface Around Australia, and in many other jurisdictions in the common law world, governments and legal systems are grappling with the practical and jurisprudential problems posed by high-risk offenders whose sentences have expired but who are still considered to be dangerous. Over recent years particular attention has been focused upon sex offenders whose offending has been of great community concern. One response has been to create continuing detention or supervision schemes which extend the state’s control over an offender beyond the end of the sentence. The law has responded in many ways to high-risk offenders, including allowing courts to impose indefinite sentences at the time of sentence. But allowing courts to extend detention beyond the expiration of a finite term involves