Post-Sentencing Considerations (HSC SSCE Legal Studies): Revision Notes

Post-Sentencing Considerations

Introduction

After an offender receives their sentence, the criminal justice process continues with several important considerations that affect how they serve their punishment. These post-sentencing arrangements are crucial for balancing community protection, offender rehabilitation, and practical administration of the justice system.

When an offender receives a community-based order or non-custodial sentence, they must fulfill the terms and conditions imposed. Failure to comply may result in returning to court for a sentence review.

For offenders sentenced to imprisonment, they undergo assessment and classification before being allocated to an appropriate correctional facility where they serve their sentence. In New South Wales, the administration of imprisonment and other post-sentence matters is governed by the Crimes (Administration of Sentences) Act 1999 (NSW). The responsible government agency managing correctional centres is Corrective Services NSW.

NSW correctional system statistics

Understanding the scale and costs of the correctional system provides important context:

Security classification

Once sentenced to imprisonment, offenders are sent to an assessment centre where they receive a security classification. This classification determines which type of correctional facility they will be transferred to.

Correctional centres in NSW are divided into three classifications based on security level:

Maximum security

Maximum security centres house offenders who have committed the most serious crimes and whose escape would pose a significant danger to public safety. These facilities have the highest levels of security, with extensive barriers, surveillance, and restrictions on inmate movement.

Examples: Goulburn Correctional Centre (male offenders), Silverwater Women's Correctional Centre

Medium security

Medium security prisons allow inmates greater freedom of movement within the facility compared to maximum security, but still maintain substantial physical barriers such as high walls and security fences.

Example: Tamworth Correctional Centre, Parramatta Correctional Centre

Minimum security

Minimum security centres have fewer physical barriers to escape and provide inmates with more open conditions. These facilities house offenders who pose a lower risk to community safety.

Example: Silverwater Correctional Centre (minimum security section)

Classification factors

Security classification is determined by several factors:

• Seriousness of the crime committed: More serious offences typically result in higher security classification
• Prospects for rehabilitation: Offenders showing good rehabilitation potential may be placed in lower security facilities
• Previous behaviour: Good behaviour during previous sentences may result in lower classification
• Risk assessment: Evaluation of the danger the offender poses to public safety if they were to escape

Protective custody

Correctional authorities have a duty of care for the safety and wellbeing of all offenders in their custody. This includes protecting inmates from the risk of physical violence from other prisoners.

Protective custody is a special arrangement provided in NSW correctional centres for offenders who are vulnerable to attack from other inmates. While imprisonment aims to isolate offenders from the community for purposes such as incapacitation and deterrence, it does not permit subjecting them to cruel, inhumane conditions or high risk of physical harm.

Who requires protective custody?

Certain categories of offenders are at higher risk of violence from fellow inmates:

Purpose of protective custody

The fundamental purpose is to fulfill the correctional authority's duty of care. The sentencing purpose is to isolate offenders from the community, not to expose them to violence or harm within the prison system. Protective custody typically involves:

• Housing in a separate wing or section of the prison
• Limited contact with the general prison population
• Additional security measures
• Regular risk assessments

Parole

Parole refers to the conditional release of a prisoner from custody after they have completed the minimum term of their sentence, known as the non-parole period, which is set by a judicial officer at the time of sentencing.

Purpose of parole

The fundamental purpose of parole is to provide offenders with an incentive for rehabilitation through the prospect of early release. This system is based on several key principles:

• Rehabilitation incentive: The possibility of early release encourages offenders to engage in rehabilitation programs and demonstrate positive behavioral change
• Better prisoner discipline: The prospect of parole promotes good behavior within the prison environment
• Gradual reintegration: Parole allows for a supervised transition from prison back into the community, reducing the risk of reoffending
• Community safety: Supervised release is generally safer than releasing offenders without any monitoring at the end of their full sentence

Parole conditions

When released on parole, an offender becomes a parolee and is placed under the direct supervision of a parole officer. This supervision involves several requirements:

Supervision and monitoring

The parole officer plays a crucial role in monitoring compliance:

• Conducting home visits to the parolee's residence
• Making inquiries in the community about the parolee's activities and associations
• Verifying employment status
• Ensuring attendance at required programs
• Assessing ongoing risk to the community

All these programs and conditions work together to assist offenders in their gradual reintegration into society while protecting the community from the risk of reoffending. If a parolee breaches their conditions, they may be returned to custody to serve the remainder of their sentence.

Preventative and continued detention

Preventative detention represents one of the most controversial and harshest forms of punishment in the criminal justice system. It involves the imprisonment of a person for potential future harm they may commit, which raises significant legal and ethical concerns.

Defining preventative detention

Preventative detention means detaining a person in custody without them having actually committed any offence or been found guilty of a crime. This detention is based on predictions about future behavior rather than punishment for past actions.

Purposes of preventative detention:

• Incapacitation: Removing from society a person considered to constitute a significant threat to community safety
• Rehabilitation: Providing treatment or programs to reduce future risk

Types of preventative detention

There are two main categories of preventative detention in Australian law:

1. Post-sentence preventative detention

Post-sentence preventative detention (also called continued detention) involves detaining offenders after they have already served their full sentence for the offence they committed. This is perhaps the most ethically complex form because the person has already completed their punishment but remains imprisoned.

NSW legislative framework:

The Crimes (Serious Sex Offenders) Act 2006 (NSW) provides for continued detention of offenders who have served a sentence for a serious sexual offence. Under this scheme:

• The Attorney-General can apply to a court for an offender's continued detention
• The court must be satisfied "to a high degree of probability" that the offender is likely to commit another serious sexual offence
• The allowable purposes are:
  • Ensuring the safety and protection of the community
  • Facilitating the rehabilitation of serious sex offenders

2. Preventative detention without charge

This type of preventative detention can occur at any time, even when a person has not been charged with or convicted of any offence.

Constitutional and legal concerns

All types of preventative detention orders are highly contentious because they remove a person's basic legal rights without due criminal process. Several key concerns arise:

Constitutional limits:

The landmark High Court case Kable v DPP (1996) 189 CLR 51 addressed these concerns. The court held that legislation targeted at individual offenders was unconstitutional. However, the decision did not prohibit all preventative detention schemes. As a result, most Australian jurisdictions now have legislation enabling general powers of preventative detention in restricted circumstances, but these must apply to categories of offenders rather than named individuals.

Balancing community safety and individual rights

Preventative detention schemes attempt to balance:

• Community protection: Preventing serious harm, particularly in cases of repeat sex offenders or terrorism threats
• Individual rights: Respecting fundamental legal protections and human rights
• Rehabilitation goals: Providing treatment to reduce future risk

Critics argue that these schemes:

• Punish people for crimes they have not committed
• Rely on imperfect predictions of future behavior
• May constitute cruel or unusual punishment
• Undermine the principle that sentences should be proportionate to the offence committed

Supporters maintain that:

• Community safety must be the paramount consideration
• Some offenders pose such high risks that extraordinary measures are justified
• Continued detention includes rehabilitation programs, not just incapacitation

Sexual offenders registration

Both state and federal governments maintain databases of sexual offenders who have been convicted of certain sexual offences. These registries serve as tools for monitoring offenders and protecting the community, particularly children.

Relevant databases

Australian National Child Offenders Register (ANCOR): A federal database that records information about child sex offenders across Australia

NSW Child Protection Registry: A state-based system managed by NSW Police

Both are web-based systems designed to assist police with registering and case managing child sexual offenders.

Legal framework

The Child Protection (Offenders Registration) Act 2000 (NSW) establishes the requirements for sex offender registration in New South Wales. Under this legislation:

Who must register: Persons convicted of a nominated violent or sexual offence against a child are required to register with local police.

Registration timeline: Offenders must register at their local police station within $28$ days of:

• Sentencing, or
• Release from custody, or
• Being found guilty of a registrable offence in another jurisdiction

When a sex offender is released on parole, they are served with a formal notice informing them of their registration obligations.

Registration periods

Information requirements

Registered offenders must provide and regularly update:

• Personal identifying information (name, date of birth, physical description)
• Current residential address
• Employment details
• Vehicle registration information
• Travel plans (both domestic and international)
• Contact information

Registry statistics

At the end of $2009$, there were over 10,500 offenders registered nationally, demonstrating the significant scale of these monitoring systems.

Justification and controversy

Arguments supporting registration:

Sexual offender registries are justified primarily on the basis of community protection, particularly the protection of children. Proponents argue:

• Police can monitor high-risk offenders more effectively
• Investigative efficiency improves when crimes occur near registered offenders
• Registration may deter some offenders from reoffending
• The severity of sexual offences against children justifies ongoing monitoring

Concerns and criticisms:

The registries are controversial for several reasons:

• They target certain offenders long beyond the period of their court-imposed sentence
• Registration requirements may hinder rehabilitation by stigmatizing offenders and making reintegration difficult
• The measures may deny offenders the chance to move on with their lives after completing their sentence
• There is debate about whether registration actually reduces reoffending rates
• Privacy concerns arise regarding the collection and storage of personal information

Balancing interests

The legislation attempts to balance two competing considerations:

• The severity of the original crime: Sexual offences against children are among the most serious crimes
• The ongoing risk of reoffending: Research indicates some sex offenders have elevated recidivism rates
• The imposition on the offender: Registration requirements significantly affect offenders' lives and freedom

Supporters argue that protecting potential victims, especially children, outweighs the burden placed on offenders. Critics contend that the measures are too broad and may not effectively target the highest-risk offenders while imposing unnecessary restrictions on lower-risk individuals.

Deportation

Under Australian immigration law, non-citizens living in Australia may face deportation if they are convicted of serious criminal offences. This consequence adds a significant additional punishment beyond the sentence imposed by a court.

Legal framework

The Migration Act 1958 (Cth) provides the legislative basis for deportation of non-citizens convicted of criminal offences.

Key provisions:

Under sections 200 and 201 of the Migration Act:

• A non-citizen who commits an offence resulting in a custodial sentence of 12 months or more during their first $10$ years of residence in Australia may be deported
• The responsible Minister for Immigration has discretionary power to decide whether deportation should occur
• The minister must consider various factors including the seriousness of the offence and the person's circumstances

Consequences of deportation

Deportation is an extremely serious consequence that goes far beyond the court-imposed sentence:

Controversy surrounding deportation

Deportation provisions are highly controversial for several important reasons:

Rehabilitation concerns:

• Deportation effectively treats the person as a problem that can be "moved elsewhere" rather than rehabilitated
• Once outside Australian jurisdiction, there is no follow-up or support for rehabilitation
• The person may be sent to a country where they face additional hardships or dangers

Fairness and proportionality:

• Critics argue that deportation adds a massive additional punishment not imposed by the court
• The discretionary nature means similar offences may result in different outcomes
• People who never applied for citizenship (but were eligible to do so) face consequences that citizens do not, despite similar length of residence

Human rights considerations:

• Deportation may separate families, including Australian citizen children from their parents
• In some cases, individuals may be made effectively stateless
• There are concerns about proportionality when the offence occurred decades in the past and the person has since rehabilitated

Case study: Robert Jovicic – "The stateless man"

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