CRI1107 ASSESSMENT REPORT PDF

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CRI1107 Report...

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CRI1107 Report 1: Prepare a report that investigates and explains Western Australia’s Dangerous Sexual Offenders Act 2006 (WA) Executive Summary This report with examine the Dangerous Sexual Offenders Act 2006 (WA) in terms of it’s development, purpose and design. This report will also identify the amendments that have been made to the Act in preceding years, such as the introduction of electronic monitoring bracelets, and will also discuss the benefits of the Act, such as the protection of the community. It will also discuss the criticism of the Act, such as its contravention of the United Nations Human Rights Committee and issues with its risk assessment methods.

Introduction There is legislation currently in place in the majority of Australia states that provide for the preventive detention or ongoing supervision of dangerous sexual offenders at the end of their sentence (Douglas, 2008; Keyzer2, 2009; Keyzer, 2010; Keyzer & McSherry, 2013; Keyzer & McSherry, 2015). In Western Australia, this piece of legislation is known as the Dangerous Sexual Offenders Act 2006 (WA) and it provides for the continuing detention or community supervision orders concerning certain offenders who are deemed to be a serious danger to the community (Keyzer2, 2009; Keyzer, 2010; King, 2007). The aim of these preventative detention schemes is to keep the offenders from committing crimes in the future (Black, 2011). Such legislative schemes allow the courts to take into account the risk that the offenders pose to the community when determining the offender’s sentence, and can in turn then order an indefinite sentence (Keyzer & McSherry, 2015). However, there are a number of practical issues that need to be addressed to ensure a real rather than perceived reduction in the risk of reoffending (Keyzer & McSherry, 2015). This report will examine the Dangerous Sexual Offenders Act’s creation, purpose and what it achieves as well as discussing the benefits and criticisms that have been identified in relation to the Act

Development of Legislation Preventative detention legislative schemes reflect a rising concern about crime and reoffending (Nielssen, 2014). The desire to respond to the public’s worries about serious sex crimes and protect future victims has hastened the pace of such legislative schemes passing through parliament (Edgeley, 2007; Keyzer & Bray, 2006). The public would lose confidence in a justice system that imposed lenient sentences on violent or sexual offenders (Baker, 2009). Therefore, t is evident that these legislative schemes are a populist response to public pressure due to the perceived problem of sex offenders (Keyzer & McSherry, 2013). In Western Australia in particular, the Dangerous Sexual Offenders Act 2006 (WA) was enacted in response to community outrage and concern over the release of serial rapist, Garry Narkle, whose criminal history included sexual offences against over 13 women and girls (Clarke, 2013; Edgeley, 2007). The legislation was passed in order to keep Narkle and other similar serious sex offenders out of the community (Edgeley, 2007).

Dangerous Sexual Offenders Legislation 1. Identify relevant legislation The Australian preventive detention schemes differ from those in other countries, in that, they enable indefinite prisons terms to be imposed prior to a prisoner’s release (Keyzer & McSherry, 2013). The Western Australian act requires that the Courts determine whether a sex offender poses a serious danger to the community, and if so, if they should remain in custody after the completion of their sentence (Supreme Court of WA Annual Review, 2014; Kind, 2007).

2. Purpose of legislation Preventative detention schemes are imposed due to the risk that an offender might commit future offences after completing their sentence (Edgeley, 2007). Under Section 4 of the Act, it’s objects are to provide detention or supervision of certain offenders to ensure the community is protected and to also provide for the control, care and treatment of those offenders. The purpose of such legislative schemes is to protect members of the community, by preventing serious sex offenders from reoffending (Baker, 2009; Keyzer & McSherry, 2013; Edgeley, 2007). Although the legislations primary purpose is community protection, the Courts are empowered by the legislation to do so by either making a continuing detention order or a supervision order (King, 2007). Another purpose of the Act is in regards to the rehabilitation and treatment of serious sex offenders (Edgeley, 2007). The legislation aims to provide the offender with rehabilitative resources and facilities within the prison system, which assists the government in achieving dual goals of ensuring the safety of the community and rehabilitation by providing the offender with appropriate therapy (Keyzer, 2009).

3. Who it targets? The Act applies to a broad range of offenders who have committed a serious sexual offence, as defined under section 106A of the Evidence Act 1906 (WA) (DSOA, s 3??). The Western Australian legislation differs from other States, in that it also requires that offenders have committed a crime that has a maximum penalty of 7 years or more imprisonment (Edgeley, 2007). The additional requirements narrow the range of offenders who are eligible for an indefinite sentence (Douglas, 2008).

4. How it Works

The Act enables an application to be made to the Courts, prior to the release of the offender, for an order of indefinite detention in prison or a continuing supervision order within the community (Keyzer & McSherry, 2015). In order to grant an order for indefinite detention, the court must find that the offender poses a serious danger, otherwise referred to as an unacceptable risk, to the community (s 17 DSOA??). The finding of an unacceptable risk must be determined with regard to any medical, psychiatric or psychological assessments or reports relating to the offender, as well as any other information regarding their offending behaviour and propensity to commit crime and their efforts to participate in rehabilitation programs (DSO s 7(3), Freiberg et al, 2015; Keyzer & McSherry, 2015). Once the Court has determined that the offender is a serious danger to the community, the court can then make an order for indefinite sentence or supervision (SDO s 17(1); Douglas, 2008).

Amendments 1. Why are there changes? Evolution of Legislation? Implication of Changes A 2012 amendment to the act introduced provisions, under s 19A and s 19C, that enabled the electronic monitoring of dangerous sex offenders (Keyzer & McSherry, 2015; DSO Amendment Act 2012 (WA) s 6). These amendments now ensure that sex offenders who have been released on supervision orders can now be closely monitored and their whereabouts known at all times. Towards the end of 2015, the most significant changes ever made to the Act were introduced to Parliament, in an effort to strengthen the ability of the authorities to mange offenders and better protect the community (AG Media Statement, 2015; O’Connor, 2015; Campbell, 2015). These changes were introduced in response to a 2014 review of the Act following community concern over the release of a sex offender known as TJD, who was arrested 8 days after his relief due to a breach of his supervision order (AG Media Statement, 2015; O’Connor 2015; Campbell, 2015). The improvements to the legislation include, changing the time between reviews from one year to two, allowing offenses committed in other jurisdictions to be taken into account when considering an application, the introduction of a 21 day delay on the release of an offender to ensure than strict arrangements can be put into place, giving the courts the ability to prevent offenders from speaking to the media or public about their victims, and also to allow victims to make written submissions to the court in regards to the conditions for their protection being included in an orders made (Campbell, 2015; AG Media Statement, 2015).

Benefits and Criticisms 1. Benefits Preventative detention schemes are generally justified on the basis that they meet the interests of community protection from serious sex offenders, by incapacitation and treating serious sex offenders (Edgeley, 2007; Baker, 2009; Black, 2011). These legislative schemes allow the harm to the potential innocent victims to be put first and held to be of more importance before the rights of the sex offender (Baker, 2009).

2. Criticisms One of the criticisms of the Dangerous Sex Offenders Act is that it may constitute double punishment, as it permits the continuation of incarceration after an offender has already served their prescribed sentence and correspondingly punishes an offender twice for the same offence (Edgeley, 2007; Keyzer & Blay, 2006). It has been argued that such schemes are unjust as the offender has already served a proportionate sentence for his past offence, and that these schemes punish an offender for a crime he has not yet and may not commit (Baker, 2009). The preventative detention legislation schemes that currently exist in Australia have been identified by the United Nations Human Rights Committee as being in violation of Article 14(7) of the International Covenant on Civil and Political Rights which prohibits double punishment, as well as being in violation of prohibitions on arbitrary detention (Keyzer & Blay, 2006; Keyzer, 2009; Keyzer, 2010). However, Australia’s states have upheld the legislation in question. An example of this was in the case of Fardon v , where Fardon, a sex offender attempted to argue that although the object of rehabilitation and treatment of sex offenders was legitimate, the use of indefinite imprisonment to achieve this was not reasonable nor was it necessary or in proportion to the states objectives (Keyzer, 2010). The United Nations Human Rights Committee upheld these complaints and stated that the schemes that existed in Australia at the time, the Queensland and New South Wales legislation, were in violation of Article 9(1), 14(1) and 14(7) due to the fact it constituted double punishment, arbitrary detainment and also was contrary to the guarantee of due process (Keyzer & Blay, 2006; Keyzer, 2010; McSherry, 2012). However, Australia is under no legal obligation to comply with their decisions, (Keyzer, 2010) and although they have been held to breach the International Covenant on Civil and Political Rights, such legislative schemes still remain attractive to the Australian government due to the fact that they are based on a model of community protection and they are linked to the publics fears about sex offenders in particular (McSherry, 2012). Another criticism of the Dangerous Sexual Offenders Act is that the objects clause of the Act makes no express reference to rehabilitation (Edgeley, 2007; King, 2007; Keyzer & McSherry, 2013, s 4 DSOA). Section 4 of the Act refers to the object of providing the continuing care, control and treatment of sex offenders, however, unlike the Acts in other States, it does not make any reference to ensuring that there are adequate and appropriate rehabilitative services made available to the offenders who are detained (Edgeley, 2007; Keyzer & McSherry, 2014, s 4 DSOA). Since the Act was passed, no additional resources or programs have been made available or implemented for a rehabilitative purpose (Edgeley, 2007). Therefore, the justification of this Act by reference to a goal of rehabilitation is unable to be confirmed due to the fact that the offenders in questions remain detained in standard prison facilities with limited access to rehabilitative resources or programs (Douglas, 2008).

These schemes have also been criticised due to the fact that they rely on the evidence of psychiatrists and psychologists in assessing the risk of future harm, however, assessing the risk of future violence and offending remains a notoriously difficult task (Edgeley, 2007; Keyzer & McSherry, 2013; Nielssen, 2014; McSherry, 2012; Roberts, 2008). One of the main challenges of the legislation is in identifying which ones will reoffend upon release (Douglas, 2008). Identifying which offenders will reoffend is highly problematic, due to the fact that various studies have found that risk prediction tools are often found to be incorrect or unreliable (Baker, 2009; Black, 2011; Douglas, 2008; Edgeley, 2007; Keyzer & McSherry, 2013; Nielssen, 2014). The risk assessment tools have also been critciised in particular with regards to their application to indigenous offenders (Keyzer & McSherry, 2013). An example o this was in the case of Director of Public Prosecutions for Western Australia v Mangolamara, where the Judge rejected an application of preventative detention and instead chose community supervision order, even though two psychiatric reports stated that the offender had low victim empathy and was a continued risk of offending (McGlade & Hovane, 2007). The Judge made this finding due to the fact that the psychiatric evaluation tools being used had not been tested on Indigenous Offenders (McGlade & Hovane, 2007). Therefore, these inaccuracies in the risk assessment tools can lead to the continued detention or supervision of offenders who do nto necessarily present a risk to society, and it can also lead to a false sense of security in the community with them believing that all high risk offenders are being managed appropriately (Keyzer & McSherry, 2013).

Conclusion Preventative detention legislation is not justifiable on the basis that it protects the community, however it is defensible if applied in the correct manner (Black, 2011). The types of crimes being committed by these offenders are of a serious and damaging nature to their victims and the community, and therefore such schemes can be justifiable on the basis that the offender has already made a deliberate choice to offend, and the lives of the innocent victims outweigh the lives of the offenders (Baker, 2009). If legislation such as the Dangerous Sex Offenders Act is to be justifiable based on community protection, reliable methods are necessary to be able to identify which offenders represent a genuine threat to the community (Edgeley, 2007). Therefore, for the Dangerous Sex Offenders Act to be justifiable in the future, it is evident that more research is needed into finding an effective and reliable risk assessment method for all races and cultures, in order to ensure offenders are not being detained when they are of no risk to the community (Edgeley, 2007).

References King, S. (2007). Problem Solving Under the Dangerous Sexual Offenders Act 2006 (Western Australia). Murdoch University Electronic Journal of Law, 14(1), 32-53 Keyzer, P. (2009). Case and Comment: Attorney-General (QLD) v Lawrence [2008] QSC 230 – The Dangerous Prisoners (Sexual Offenders) Act – Are the ‘best available rehabilitative resources’ available? Criminology Law Journal, 33, 175 Keyzer, P., & Blay, S. (2006). Double Punishment? Preventative Detention Schemes under Australian Legislation and their consistency with International Law: The Fardon Communication. Melbourne Journal of International Law, 7, 407-424 Keyzer, P. (2010). The United Nations Human Rights Committee’s Views about the Legitimate Parameters of the Preventive Detention of Serious Sex Offenders. Criminology Law Journal. 34, 283-291 Nielssen, O. (2014). Problems with Civil Commitment of Sex Offenders. Northern Territory Law Journal? 2, 378-382 Baker, D. (2009). Punishment Without a Crime: Is Preventative Detention Reconcilable with Justice? Australian Journal of Legal Philosophy, 34, 120-150. 2 = Keyzer, P.(2009). The Preventative Detention of Serious Sex Offenders: Further Considerations of the International Human Rights Dimensions, 16(2), Psychiatry, Psychology and Law, 262-270. doi: 10.1080/13218710802471750 Keyzer, P., & McSherry, B. (2013). The Preventive Detention of Dangerous Sex Offenders in Australia: Perspectives at the Coalface. International Journal of Criminology and Sociology, 2, 296-305. McSherry, B. (Sep/Oct 2012), Precedent, Issue 112, 5-8 Keyzer, P., & McSherr, B. (2015). The Preventive Detention of Sex Offenders: Law and Practice. UNSW Law Journal, 38(2), 792-822. McGlade, H., & Hovane, V. The Mangolamara Case: Improving Aboriginal Community Safety and Healing.Indigenous Law Bulletin, (May, 2007). 6(27).18-20. Supreme Court of Western Australia, Annual Review 2014, 1-22, SCWA, Barrack Street, Perth Sentencing for Child Sexual Abuse in Institutional Contexts, Report for the Royal Commission into Institutional Responses to Child Sexual Abuse, Arie Freiberg, Hugh Donnelly, Karen Gelb. Jult 2015, Sydney Lindsay, R. Contemporary Comment: Punishment without Finality: One Year in the Life and Death of Alan Egan, (2009), Criminology Law Journal, 33, 45-54 Edgely, M. (2007). Preventing Crime or Punishing Propensities? A purposive examination of the preventative detention of Sex Offenders in Queensland and Western Australia, 33, UWAL Review, 351-386. Douglas, H. (2008). Post-Sentence Preventive Detention: Dangerous and Risky. The Criminal Law Review, 22, 854-873 Black MPhil, J. (2011). Is the Preventative Detention of Dangerous Offenders Justifiable? Journal of Applied Security Research, 6(3), 317-338. doi: 10.1080/19361610.2011.580260 Kate Campbell, “WA Dangerous Sex Offender Law Changes head to parliament”, December 2, 2015. News.com. retrieved from http://www.news.com.au/national/western-australia/wa-dangerous-sex-offender-law-changes-head-to-parliament/newsstory/2ca7c8703b7124a3c1ac26394729e107 Andrew O’Connor, “WA Dangerous Sex Offender Laws to be Strengthened”, 15 October, 2015, Abc.net.au Retrieved from http://www.abc.net.au/news/2015-10-15/dangerous-sex-offender-laws-to-be-strengthened-in-wa/6858594 Attorney General’s office media Statement, “ Dangerous Sex Offender Changes Introduced”, 2 December 2015. retrieved from https://www.mediastatements.wa.gov.au/Pages/Barnett/2015/12/Dangerous-sex-offender-changes-introduced.aspx Tim Clarke, “Sex Offender Shane Narkle Freed”, 7 January 2013, Perth Now, Retrieved from http://www.perthnow.com.au/news/national/sex-offender-shane-narkle-freed/story-fndo6e6y-1226549067861...