10.1 Protective sentences have the claimed purpose of protecting the community from the commission of criminal acts by the incarceration of a potential offender. Protective sentences can be said to lie generally within the sentencing objective of incapacitation.1 While all sentences of imprisonment involve, to some extent, the protection of the community, the particular characteristic of protective sentences is that they flout the general principle governing sentencing in Australia that a sentence must be proportional to the offence in question and must not be extended merely to protect the community by preventing the recidivism of the offender.2
10.2 The most common forms of protective sentences in Australia are:
- indefinite (or indeterminate) sentences;
- additional (fixed) sentences; and
- preventive detention orders.
INDEFINITE SENTENCES
10.3 Indefinite sentences are penalties imposed without a finite termination date. Courts may impose such penalties ab initio or as an indefinite extension of a normal fixed sentence. Indefinite sentences are available in all jurisdictions in Australia except for New South Wales and the Australian Capital Territory. Essentially indefinite sentences take two forms: that of an indefinite sentence terminable by executive act;3 and that of an indefinite sentence terminable by judicial review.4 DP 33 considered whether such sentences should form part of the law of sentencing in New South Wales, having regard to their prevalence in other jurisdictions.
10.4 There are many arguments for and against the provision of indefinite sentences. First, it can be argued that the community is entitled to be protected against those likely to commit crimes involving serious violence. If such greater safety is attainable by means of indefinite sentences, extended imprisonment is justified.5 However, justice and the common law of sentencing in Australia require that a punishment be proportional to the crime.6 Although the principle of proportionality does not exclude appropriate exceptions with respect to individual sentences where the principle of totality is involved, proportionality is retained in any case where the sentencing court looks at the sentences as a whole. The High Court has described indeterminate detention as a punishment of a “stark and extraordinary” nature.7
10.5 Secondly, it has been suggested that concern about potential injustice arising from the availability of indefinite sentences can be met by imposing them only after careful selection of offenders who are likely to commit violent offences using suitable criteria and imposing requirements for expert evaluations and stringent levels of proof.8 However, the following criticisms suggest that it may be extremely difficult, if not impossible to satisfy the stringent requirements which would be necessary in imposing such a sentence:9
- Selective incapacitation, directed at dangerous offenders, is inevitably problematic, as predictive techniques in this field are notoriously flawed.10
- It is difficult to prove the criteria as to dangerousness stipulated in existing legislation.
- It is questionable whether the discipline of psychiatry has the relevant expertise in predicting dangerousness. The prediction of dangerousness for the purpose of extending the imprisonment of an offender may not be an appropriate role for psychiatry.11
- The procedural safeguards in existing legislation fail to prevent the potential for injustice through predictive error.
It can, therefore, be argued that indefinite sentences, based on flawed predictions, amount to arbitrary imprisonment. Such imprisonment is a violation of human rights and could be said to amount to “cruel and unusual punishment”.12
10.6 Thirdly, it has been suggested that selective incapacitation is a useful way of more rationally allocating prison resources, by identifying high-rate offenders and targeting them.13 However, although it is difficult to estimate the actual impact, some commentators have pointed to the serious potential cost implications of indefinite sentences in terms of the prison population.14
10.7 Other arguments against indefinite sentences include:
- Indeterminate sentencing legislation has distinct implications for the type of criminal to be imprisoned under it, with it being more likely that those imprisoned will be young, poor, disadvantaged and members of certain racial minorities rather than the more affluent, particularly white-collar criminals, who are often more able to show that they will not re-offend.15
- Juries may be reluctant to convict when an offender may be subject to such a level of punishment.16
10.8 The Commission considers that the arguments against indefinite sentences are compelling and accordingly considers that indefinite sentences should not be introduced in New South Wales. This was supported by submissions which considered the issue.17 In particular the Department of Corrective Services noted that indefinite sentences are extremely harsh on inmates and stated that, in its experience, “every inmate wants to know with certainty the day when he/she will be released”. A benefit of the current system is that it provides a “high level of certainty”.18 Others went on to warn in their submissions that, if indefinite sentences were introduced, they must be accompanied by safeguards which lessen the unfavourable aspects of their impact.19
ADDITIONAL SENTENCES
10.9 Legislation allows courts to impose, in certain circumstances, a sentence in addition to the sentence already being imposed on an offender.20 Such provisions may be found in the Habitual Criminals Act 1957 (NSW), the Crimes Act 1900 (NSW) and the Inebriates Act 1912 (NSW). The Commission considers that in each of these cases repeal is necessary, for the reasons which are outlined at paragraphs 10.19-10.20.
Habitual Criminals Act 1957
10.10 The Habitual Criminals Act 1957 (NSW) provides that an additional sentence may be imposed on an offender declared to be an “habitual criminal”. To pronounce a convicted person an habitual criminal, a court must be satisfied that the person:
- is least 25 years of age; and
- has served, on at least two occasions previously, separate terms of imprisonment as a consequence of convictions for indictable offences (not being indictable offences dealt with summarily without consent).21
10.11 Before making such a pronouncement, the court must also be satisfied that “it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time”. The pronouncement follows the sentencing for the instant offence and the offender, once declared an habitual offender, must be sentenced to a concurrent term of at least five and not more than fourteen years.22
Additional sentences upon second or third convictions
Crimes Act 1900 (NSW) s 443
10.12 Section 443 of the Crimes Act 1900 (NSW) allows for the imposition of an additional sentence on a second or third conviction as follows:
In every case where, on the conviction of a person of an offence punishable under this Act, it is made to appear to the Judge that the offender has been previously convicted of, and sentenced for, an indictable offence, under this or any former Act, such Judge may sentence him to a term of punishment, in addition to that prescribed for the offence of which he then stands convicted.
Where the offence is a felony, the offender may, on a second conviction, be sentenced to a term of between two and ten years, or, on a third conviction, be sentenced to a term of between three and fourteen years. Where the offence is a misdemeanour, the offender may be sentenced to a term of between six and eighteen months.
Crimes Act 1900 (NSW) s 115
10.13 Section 115 of the Crimes Act 1900 (NSW) provides for what is in effect an additional offence with a higher statutory maximum penalty. The additional offence is that of committing an offence under s 114 having been previously convicted of any felony or misdemeanour. The maximum penalty under s 115 is ten years imprisonment, as opposed to seven years under s 114.
Inebriates Act 1912
10.14 The Inebriates Act 1912 (NSW) makes provision with respect to inebriates. An inebriate is defined as a “person who habitually uses intoxicating liquor or intoxicating or narcotic drugs to excess”.23 The first part of the Act provides that, on application by certain specified persons, a court, judge or magistrate may, on proof to their satisfaction that a person is an inebriate,24 make a variety of orders, including that the inebriate enter into a recognizance, that the inebriate be placed in the care and control of another for up to twelve months, or that the inebriate be placed in a prescribed institution for up to twelve months.
10.15 Further provisions are made with respect to inebriates who are convicted of certain offences. Under s 11(1) a court may act in the following circumstances:
11(1) Where a person is convicted before a stipendiary magistrate, or on indictment:
(i) of an offence of which drunkenness is an ingredient; or
(ii) of assaulting women, cruelty to children, attempted suicide, or wilful damage to property, and it appears that drunkenness was a contributing cause of such offence,
and on inquiry it appears that the offender is an inebriate ....
When these circumstances are established the court may: sentence the offender according to law; discharge the offender conditionally upon the offender entering a recognizance for a period of not less than twelve months; or order that the offender be placed for twelve months in a State institution established under s 13 of the Act.25 The final order may only be made upon the court determining that the offender is an inebriate in accordance with the requirements set out in s 3(1)(i) and (ii). The period of detention may be extended for further periods not exceeding twelve months each on the order of the Supreme Court or a District Court judge.26
10.16 Allowance is made for the release on licence of persons detained in State institutions. The conditions of the licence are specified to be that:
... the licensee shall, for a period therein specified, not exceeding twelve months, be of good behaviour and abstain from taking or using any intoxicating liquor or intoxicating or narcotic drugs.27
10.17 The Act also deals with repeat offenders:
Where a person has, after the ninth day of September, one thousand nine hundred and nine, been discharged from a State institution, or released on licence, or discharged under section 11 on recognizances, and within twelve months thereafter has been convicted for an offence of which drunkenness is an ingredient, and has subsequently and during the said twelve months been charged with any offence mentioned in section 11, the court before which he is so charged may, in dealing with him under that section, order him to be placed in a State institution for a period not exceeding three years.28
10.18 The Legal Aid Commission29 and the Law Society30 have each submitted that the Inebriates Act 1912 (NSW) should be repealed, both because it allows for the administrative detention of a person without criminal conviction and because an “inebriate” offender can be detained by order of a court in a State institution for twelve months at a time subject to extension by the Supreme Court or a District Court judge.
The Commission’s views
10.19 The Commission has identified the following reasons for the repeal of all of the provisions above:
- They may take a sentence beyond that which is proportional to the criminality of the offence for which the offender is being sentenced. We particularly note, with respect to the Inebriates Act 1912 (NSW), that in cases where the principle of proportionality is not offended, the options available to the court would most likely be available to a sentencing court in any case.
- In so far as these pieces of legislation seek to have an effect on an established pattern of behaviour, the Commission considers that such matters should be more appropriately dealt with in ways other than by extending a particular term of imprisonment. This is perhaps most obvious with respect to the Inebriates Act 1912 (NSW), where proper medical treatment outside the criminal justice system would be more appropriate.
- More generally, the beliefs which underpin the Acts in question are no longer appropriate or are provided for in other ways. For example, the Habitual Criminals Act 1957 (NSW) was passed in the belief that there was a class of habitual criminals who possessed “criminal qualities inherent or latent in [their] mental constitution”.31
- The procedures under the Acts are archaic and do not correspond with current practice. For example, the Inebriates Act 1912 (NSW) and the Habitual Criminals Act 1957 (NSW) both allow for a system of “release on licence” for persons declared under their provisions.32
- There has, in recent years, been little use of the provisions under the Habitual Criminals Act 1957 (NSW), the Crimes Act 1900 (NSW),33 and the Inebriates Act 1912 (NSW). The last reported case to deal with a sentence under the Habitual Criminals Act 1957 (NSW) was in 1973 when it was noted that the courts in New South Wales had been unwilling to make pronouncements under the Act.34
10.20 Submissions which considered the issue supported the Commission’s proposal in DP 33 for repeal.35 The Commission accordingly recommends that the Habitual Criminals Act 1957 (NSW), s 115 and s 443 of the Crimes Act 1900 (NSW) and so much of the Inebriates Act 1912 (NSW) as has a bearing on the sentencing process should be repealed.
PREVENTIVE DETENTION
10.21 Preventive detention is the incarceration of a person for a fixed or indefinite period for the sole purpose of removing that person from the community for some specified reason. Usually that reason is a feared instance or course of criminal conduct, but this is not essential. The exercise of such a power is highly controversial.
10.22 The Community Protection Act 1994 (NSW) provided expressly for preventive detention. Although originally intended to cover a broader field, it was limited to the preventive detention of Gregory Wayne Kable. Despite the narrow scope of the Act, most of its provisions were framed in general terms. Section 5(1) allowed that, on application by the DPP, the Supreme Court could order that a person be detained for a maximum period of six months,36 if the court was satisfied on reasonable grounds:
10.23 Section 5 further provided that:
10.24 Under s 15, a detention order could only be made when the Supreme Court was satisfied that the DPP’s case had been proved on the balance of probabilities.
10.25 Arguments in favour of the legislation centre largely on the claim that some form of protection for the community against future violent acts is required. Arguments against the legislation include that: it infringes a fundamental human right;37 the balance of probabilities is insufficient as the standard of proof in relation to the deprivation of liberty; and there are practical problems inherent in the prediction of future violent behaviour. There was also concern that the powers it created might be open to abuse.38 For these reasons the Commission proposed in DP 33 the repeal of the Community Protection Act 1994 (NSW).39
10.26 Submissions generally supported the repeal of the Community Protection Act 1994 (NSW),40 in particular the Director of Public Prosecutions,41 who drew on the “overwhelming evidence that psychiatrists are very poor predictors of whether a person will re-offend”.42 Writings in the field of psychiatry were cited including an American work which noted that psychiatrists themselves doubt their ability to predict “dangerousness” for the purposes of preventive detention.43
10.27 The Victims Advisory Council maintained its support for the Community Protection Act 1994 (NSW) and advocated its further development, stating that it saw “nothing wrong in passing laws to protect prospective victims of violent crime, in clear cases”.44 The Chairperson of the Offenders Review Board also did not support repeal of the Act.45
10.28 Since the release of DP 33 the Community Protection Act 1994 (NSW) has been declared invalid by the High Court, which held that a determination that a person be detained on the grounds specified in s 5 could not be made by a court which could or does exercise powers under Chapter 3 of the Commonwealth Constitution.46 Accordingly, no recommendation for the repeal of the Community Protection Act 1994 (NSW) is now necessary, although the Commission maintains its in principle objections to such legislation.47
FOOTNOTES
1. See para 14.12; DP 33 at paras 3.18-3.20 and 4.97.
2. See Chester v The Queen (1988) 165 CLR 611 at 618 per Mason CJ, Brennan, Deane, Toohey and Gaudron JJ.
3. For example, Criminal Code (WA) s 662(a), repealed by Sentencing (Consequential Provisions) Act 1995 (WA).
4. Criminal Law Sentencing Act 1988 (SA) s 22-23; Penalties and Sentences Act 1992 (Qld) Part 10; Sentencing Act 1991 (Vic) s 18A-18P; Sentencing Act 1995 (NT) s 65-78; Sentencing Act 1995 (WA) s 98-101.
5. See D Wood, “Dangerous Offenders and Civil Detention” (1989) 13 Criminal Law Journal 324; J Floud and W Young, Dangerousness and Criminal Justice (Heinemann, London, 1981) at 180.
6. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson, Toohey JJ, at 486 per Wilson J, at 491 per Deane J.
7. Chester v The Queen (1988) 165 CLR 611 at 619.
8. For example, N Morris, “Incapacitation with Limits” in A von Hirsch and A Ashworth (eds), Principled Sentencing (Northeastern University Press, Boston, 1992). Arguably, current legislation in Australia does not meet the requirements on which Morris insists.
9. See DP 33 at para 4.106.
10. J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312 at 322.
11. Parliament of Victoria, Social Development Committee, Inquiry into Mental Disturbance and Community Safety: Third Report: Response to the Draft Community Protection (Violent Offenders) Bill (Government Printer, Melbourne, 1992) at 30-38.
12. In Sillery v The Queen (1981) 180 CLR 353 at 361-362, Murphy J, obiter dicta, questioned the constitutional competence of the Commonwealth Parliament to pass legislation having such an effect.
13. J Q Wilson, “Selective Incapacitation” in A von Hirsch and A Ashworth (eds), Principled Sentencing (Northeastern University Press, Boston, 1992).
14. R G Fox, “Victoria Turns to the Right in Sentencing Reform: The Sentencing (Amendment) Act 1993 (Vic)” (1993) 17 Criminal Law Journal 394 at 413.
15. J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312 at 330.
16. Fox at 412.
17. NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; Confidential, Submission (22 May 1996) at 16; N R Cowdery, Submission (17 June 1996) at 9; W D T Ward, Submission (25 July 1996) at 4.
18. Department of Corrective Services, Submission (15 July 1996) at 14.
19. The Senior Public Defender therefore urged: that consideration be given to imposing indefinite sentences only when prisoners have completed or nearly completed their initial sentences; that such sentences, once imposed, should be periodically reviewed every three to five years; and that the standard of proof required for the imposition of an indefinite sentence should be beyond reasonable doubt and not the “high degree of probability” provided for in s 18B(1) of the Sentencing Act 1991 (Vic): M L Sides and Bar Association, Submission (24 June 1996) at 25-26. The Commission queries the practicability of these suggestions. Another suggested that serious consideration be given to a suggestion reproduced in DP 33, at para 4.81 footnote 171, that offenders sentenced to an indefinite period of detention be subject to a re-determination after five years where a minimum and additional term would be set, similar to the procedure under s 13A of the Sentencing Act 1989 (NSW): S Odgers, Submission (7 June 1996) at 3.
20. See DP 33 at paras 4.109-4.119.
21. Habitual Criminals Act 1957 (NSW) s 4.
22. Habitual Criminals Act 1957 (NSW) s 6; R v Roberts [1961] NSWR 681; (1959) 78 WN (NSW) 329.
23. Inebriates Act 1912 (NSW) s 2.
24. Subject to the production of a certificate of a legally qualified medical practitioner and corroborative evidence by some person or persons and personal inspection of the inebriate by the court: Inebriates Act 1912 (NSW) s 3(1)(i) and (ii).
25. Inebriates Act 1912 (NSW) s 11(1)(a), (b) and (c).
26. In 1995 an inebriate was ordered to be placed in a licensed institution in accordance with s 3(1) of the Inebriates Act. An application to the Administrative Law Division of the Supreme Court revealed that there were no longer adequate facilities for the care of inebriates at the licensed institution. The inebriate was released by Dunford J subject to conditions: Eller v Medical Superintendent Gladesville Macquarie Hospital (NSW SC, ALD 30075/96, 5 July 1996, Dunford J, unreported).
27. Inebriates Act 1912 (NSW) s 14.
28. Inebriates Act 1912 (NSW) s 16.
29. Legal Aid Commission of NSW, Submission (18 July 1996) at 7.
30. Law Society of NSW, Submission (19 July 1996) at 11.
31. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 14 March 1957, the Hon W F Sheahan, Second Reading Speech at 4070. The second reading speech for the earlier Habitual Criminals Act 1905 (NSW) contained references to principles of eugenics and the need to avoid “moral contamination” throughout society: New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 23 August 1905, the Hon C G Wade at 1642.
32. Inebriates Act 1912 (NSW) s 14; Habitual Criminals Act 1957 (NSW) s 7(2).
33. DP 33 at para 4.118.
34. R v Riley [1973] 2 NSWLR 107 at 112. At that time it was noted that 12 habitual criminals were being detained in New South Wales prisons: at 110.
35. N R Cowdery, Submission (17 June 1996) at 8; M L Sides and Bar Association, Submission (24 June 1996) at 26; New South Wales Council for Civil Liberties, Submission (1 July 1996) at 3; Justice Action, Submission (2 July 1996) at 3; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996) at 6; Legal Aid Commission of NSW, Submission (18 July 1996) at 7; Law Society of NSW, Submission (19 July 1996) at 11; W D T Ward, Submission (25 July 1996) at 4; Confidential, Submission (22 May 1996) at 17; Department of Corrective Services, Submission (15 July 1996) at 11.
36. Prescribed by s 5(2) of the Community Protection Act 1994 (NSW).
37. Notwithstanding its arguable consistency with international human rights conventions: See Kable v DPP (1995) 36 NSWLR 374 at 379 per Mahoney JA.
38. See Kable v DPP (1995) 36 NSWLR 374 at 378-379 per Mahoney JA.
39. DP 33 at paras 4.120-4.126.
40. NSW Council for Civil Liberties, Submission (1 July 1996) at 3; Justice Action, Submission (2 July 1996) at 3; NSW Young Lawyers, Criminal Law Committee, Submission (19 July 1996); Legal Aid Commission of NSW, Submission (18 July 1996) at 7-8; Law Society of NSW, Submission (19 July 1996) at 11-12; Confidential, Submission (22 May 1996) at 17; and M L Sides and Bar Association, Submission (24 June 1996) at 26 who suggested that, if preventive detention legislation were to be retained, the period of detention should not be indeterminate; there should be regular reviews by the courts; and the standard of proof should be beyond reasonable doubt.
41. Who was empowered by the Act to initiate applications for detention: Community Protection Act 1994 (NSW) s 5.
42. N R Cowdery, Submission (17 June 1996) at 8.
43. G B Leong, J A Silva and R Weinstock, “Dangerousness” in R Rosner (ed), Principles and Practice of Forensic Psychiatry (Chapman & Hall, New York, 1994) 432.
44. Victims Advisory Council, Submission (10 July 1996) at 4.
45. W D T Ward, Submission (25 July 1996) at 4.
46. Kable v DPP (1996) 70 ALJR 814.
47. The Commission would, therefore, not support the Community Protection (Dangerous Offenders) Bill 1996, a private member’s bill, which is currently before Parliament: see New South Wales, Parliamentary Debates (Hansard) Legislative Council, 31 October 1996 at 5648.
