Post Sentencing Considerations Essay Plan PDF

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HSC LEGAL STUDIES: CRIME

Evaluate the effectiveness of post-sentencing considerations in achieving justice for victims, offenders and society Post sentencing considerations have been effective to a moderate extent in achieving justice for victims, offenders and society, though the offender’s freedom of movement is often restricted to protect the rights of society. This is most specifically seen when examining parole, security classification, protective custody, continued detention, the sex offenders’ registry and deportation. Therefore, post sentencing considerations, as a measure to further protect the rights of society and prevent reoffending, have been effective to a moderate extent in achieving justice for all parties involved, however in doing so, limit the autonomy of the offender.

Parole, as a post sentencing consideration, has been effective to a moderate extent in achieving justice for victims, offenders and society, however it is often limited by breaches, which have led to harsher reforms Ø Crimes (Sentencing Procedure) Act 1999 sets out number of important rules to be applied by courts in relation to parole o According to BOCSAR, more than 7/10 parolees don’t commit any further offence while on parole, only 7% of parolees commit a violent offence (The Conversation, June 2017) Ø Crime Statistics Agency figures released by FairFax Media revealed 77 charged for breaching parole between July and December 2014 (SMH, April 2015) o According to BOSCAR, one in four offenders re-offended whilst on parole and 20% reoffended after their parole period had expired. Ø Jill Meagher Case: Coroner found Meagher’s killer Adrian Ernest Bayley was on parole for previous rapes when he raped and murdered her, saying that ‘Gillian Meagher’s death was preventable’ (ABC NEWS, May 2016)- undermining ability to achieve justice for victim and society, as put in harm’s way Ø Led to the introduction of reform to increase the effectiveness of parole to achieve justice for both offenders, victims and society o Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017- nationally consistent presumption against granting parole for people “demonstrated support or links to terrorist activity” (SMH, June 2017)- in response to terrorist activities committed by Yacqub Khayre in Melbourne o Supported by NSW Government’s “tougher and smarter justice reforms”, which introduced mandatory supervision for all parolees and an extra community corrections officers to be employed, trained in cognitive ad behavioural techniques § However, concerns about procedural fairness as consequences of breach determined by corrections officer rather than constituted body § Corrective Services Victims Register used to notify victims of crime about significant changes to offender’s custody circumstances- aims to achieve justice for victim but inflicting on rights of offender o In NSW, voluntary chemical castration will be used as an option for sex offenders seeking parole (ABC News, May 2017)

HSC LEGAL STUDIES: CRIME The post sentencing consideration of security classification is effective to a moderate extent in achieving justice for victims, offenders and society, by protecting high risk offenders from society however limit the autonomy of the offender Ø The Serious Offenders Review Council manages security classification, placement and case management of inmates who are classified as serious offenders, which make up about 7% of the NSW prison population. These include inmates who have been convicted of murder or/are serving life imprisonment, or serving at least 12 years in custody, or deemed to require management as a serious offender by the sentencing court, Parole Authority, etc o Under Regulation 11 of the Crimes (Administration of Sentences) Regulation 2014, an inmates’ classification must be reviewed at least every 12 months Ø In NSW, the classification of female is governed by regulation 13 of the Crimes (Administration and Sentences) Regulation 2014 (NSW). The highest classification is “5”, which applies to inmates that should “at all times be confined in special facilities within a secure physical barrier” and under electronic surveillance equipment. They are deemed to “represent a special risk to national security” o In contrast, minimum security “1” and “2” inmates “need not to be confined by a physical barrier at all times Ø While maximum security classification, reflects the offenders risk to society and so aims to achieve justice and protects the rights of victims and society, this often conflicts with the rehabilitative measures, sovereignty and freedom of movement of the offender, reflecting its inability to protect all. o 7:30 Program: Senior counter terrorism officials inside maximum-security Supermax High Risk Management Centre in Goulburn NSW fear young terrorism suspects are being further radicalised by hardened extremists, limiting prospects of rehabilitation (ABC News, October 2016)

Protective Custody, as a post sentencing consideration, has been effective to a moderate extent in achieving justice for victims, offenders and society. However, in ensuring order is instated in the prison system, the offenders right of movement is limited by solitary confinement. Ø Under the Crimes (Administration of Sentences) Act 1999 (NSW), protective custody refers to segregation of offenders for the safety of others or the security of the centre Ø Roger Rogerson: placed in protective custody when he entered Berrima Gaol Ø In 2011, Juan Mendez, the UN Special Rapporteur on torture or other cruel, inhuman or degrading treatment called for a worldwide ban on the practice of prolonged solitary confinement/protective custody, with an absolute prohibition in juvenile cases and those with mental disabilities (ABC News, October 2014) Ø Don Grant, Forensic Psychiatrist said practices of social isolation and protective custody can lead to further withdrawal, sensory deprivation, lack of control with no personal autonomy, loss of self-reliance and dysfunction in society once released (ABC News, October 2014) Ø Brett Collins, who has been in protective custody during his jail terms upon release began working for Prisoners Action Group, a prisoners’ right advocate and is now part of Justice Action, campaigning for greater protection of offenders rights in post sentencing considerations

HSC LEGAL STUDIES: CRIME Continued Detention has been effective to a moderate extent in achieving justice for victims, offenders and society, by protecting victims and society from high risk offenders released into the community, however in doing so, limit the offender’s prospects at rehabilitation. Ø Continued Detention is protected under Crimes (Serious Sex Offenders) Act 2006 (NSW) and Crimes (High Risk Offenders) Act 20906 (NSW) o Preventative Detention Orders in place since 2002 (following 9/11 terrorist attacks) as part of the NSW Terrorism (Police Powers) Act With a PDO, police can hold a person for up to 14 days. To obtain an order, police must have a “reasonable suspicion” that the person is going to engage in an imminent terrorist act § Many argue that these laws allow for arbitrary detention and double punishment, contrary to the International Covenant on Civil and Political Rights, which Australia signed in 1980 à Aims to protect the rights of society however conflicts with rights of offender, undermining ability to achieve justice Ø Bronson Blessington: Former DPP Nicholas Cowdery is petitioning for Teen Killer Bronson Blessington to be released from prison, citing that the imprisonment of a juvenile for an indefinite term was “objectionable” and motivated by “pure revenge”, saying he has displayed remorse and rehabilitation while in prison (SMH, February 2016) o Ms Balding’s family (conflict between victim and community interests with offenders rights) has been adamantly opposed to Blessington’s release, saying the crime was so abhorrent he deserves never to be released regardless of his age or rehabilitation § Victims rights to be safe from offender conflicting with offenders right to be released post-sentencing, after exhibiting remorse and rehabilitation Ø However, despite these conflicting rights, law reform has aimed to increase the effectiveness of preventative and continued detention by imposing more stringent conditions, conflicting with right of offender to be released post sentence after exhibiting rehabilitation o Counter-Terrorism Legislation Amendment Act (No.1) 2016-Federal Government is also calling a meeting of all State and Territory Attorney-Generals to enact a ‘postsentence preventative detention legislation’ scheme that would enable convicted terrorist offenders to undergo indefinite detention, even after their sentences are completed o Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016- developed by Parliamentary Joint Committee on Intelligence, will let people convicted of terrorism offences be detained longer after jail terms expired, in the form of a Continuing Detention Order

The sex offender’s registration, as a post sentencing consideration is effective to a moderate extent in achieving justice for victims, offenders and society. However, while the registry aims to protect the rights of victims and society, it most evidently conflicts with the privacy of the offender following the completion of their sentence. Ø Sex offenders Registration protected under Child Protection (Offenders Registration) Act 2000 (NSW) o Senator Derryn Hinch is pushing for a national public register for convicted sex offenders, aimed to protect the rights of victims and society, however inflict with offender’s privacy (The Herald Sun, June 2017)

HSC LEGAL STUDIES: CRIME §

With the Turnbull Government, new laws will aim to amend the Australian Passports Act and Criminal Code Act for child sex offenders to be banned from travelling overseas, as a post sentencing consideration to ensure they don’t reoffend- clearly inflicts with offender’s sovereign rights and freedom of movement. Under these reform, the passports of 20,000 convicted paedophiles would be cancelled (The Guardian, May 2017) Ø However, according to University of New England criminologist Xanthe Mallet, child sex offender’s registries are ineffective as they have no or little impact on reoffending rates o Furthermore, loopholes in the sex offender’s registry has been reflected with the Murderer of Jill Meagher, Adrian Bayley, who despite raping up to two dozen women before murdering Meagher, was not listed on the registry, reflecting its limited effectiveness to achieve justice for victims and society

Deportation, as a post sentencing consideration, has been effective to a moderate extent in achieving justice for victims, offenders and society, by protecting victims and offenders from high risk offenders in danger of reoffending, however undermine the autonomy of the offender’s right. Ø Deportation protected under section 201 and 501 of Migration Act (Cth)- refers to the forced removal of an offender from a state or country to another territory following the completion of their sentence or during the undertaking of it Ø Under the Migration Amendment (Character and General Visa Cancellation) Act 2014, it is now mandatory to deport non-citizens if they are sentenced to terms of imprisonment that total 12 months or more o However, Australia has repeatedly come under heavy international criticism for its actions. In 2011, the United Nations Human Rights Committee condemned Australia’s practice of deporting non-citizens as a violation of international law § Inflicts with offenders right of self-determination and live where they wish but ensures the safety of victims and society, to have community free of crime and harm Ø Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC: Full Court of Federal Court overturned decision by Immigration Minister Peter Dutton to deport two men, after it was found Dutton hadn’t spent enough time considering their cases before making his decision

Therefore, post sentencing considerations have been effective to a moderate extent in achieving justice for victims, offenders and society, seen in parole, security classification, protective custody, continued detention, the sex offenders’ registry and deportation. However, while the criminal justice system aims to achieve justice for all parties involved, in these circumstances the offender’s rights and freedom of movement is curtained to protect the safety of victims and society....