Several states across the Country have enacted or attempted to enact legislation which can enable detention of a prisoner past his/her release date. This type of legislation's general purpose is to provide a mechanism whereby prisoners who, if released pose an unacceptable risk of committing further serious offences, may be detained where it is deemed appropriate to do so for the protection of the community (Field, 2003). The most recent of these being the Queensland Government's passing of the Dangerous Prisoners (Sexual Offenders) Act 2003. Similar laws were introduced in New South Wales in 1994, however they were ultimately ruled invalid by the High Court. Prior to this in 1991 Victoria enacted legislation known as the Community Protection Act 1990, which allowed for the continued detention of one prisoner known as Garry David. Whilst this Act applied to no one else the Victorian Government attempted to broaden the legislation with Draft Bill proposals which ultimately lapse in the face of wide ranging criticism from lawyer, psychiatrists and academics. (Greig 1995)
This type of legislation has been devised to allow for the detention of people based upon assessments of risk of re-offending, this essay will explore the concerns with these practices. This essay further aims to explore the moral and practical implications of such sentencing provisions and the impact it has on the whole Justice System. The writer will also address the conflicting goals of Corrections and the purpose and impact of indefinite sentencing while exploring the justifications against such legislation. This essay also aims to show that even though we may feel disgust for these types of offences we must remember the fundamentals of the Criminal Law system and understand that people are entitled to equality and fairness in the eyes of the law.
It has been suggested that this type of legislation has largely been introduced to fill a perceived gap (Field, 2003). Whilst most jurisdictions have sentencing provisions that allow for indefinite sentencing at the time of original judgement there are few which have legislation which allows for the extension of a persons detention based upon the presumption that they may commit further crimes. This type of legislation provides a framework whereas an application can be made to further detain a prisoner who is due to release as they are deemed to be an unacceptable risk of further offending and their further detention will protect the community (Field, 2003).
Whilst it is generally accepted that the community broadly welcomes such imposing and punitive legislation, it is imperative that our disgust for these offences/offenders does not prevent us from finding the injustice on an ethical and moral basis (Wortley and Smallbone, 2003).
One of the fundamental principles of the Criminal Law System is the presumption of innocence until proven guilty (McSherry, 2003). By enacting punitive legislation such as the examples given above, it has been said that it is removing this Common law right from the individual (Greig, 1995). It has also been said that it creates an exception to the general principle of law that no person shall be imprisoned unless a court comprised of Judge/Jury is convinced, beyond reasonable doubt that the person committed a very serious offence. Thereby effectively allowing people to be detained without the burden of proving guilt (Keon-Cohen, 1992).
Whilst it is appreciated that the offenders who will be subject to...