Post Sentencing Considerations

Syllabus dot point

The Syllabus is asking you to: Examine the implications of post-sentencing

considerations in achieving justice.

So this means you need to look at the CONSEQUENCE of some of these decisions
and whether we think they achieve justice or not.

Parole and Preventative/Continued Detention have issues with Justice more so

than others (Significant Issues)
Post-Sentencing Considerations

After the defendant has been sentenced to a punishment, there are STILL more issues
that MIGHT need to be decided on (this is not always the case)
 Security Parole possible, Preventativ
Classification but not e/Continued
before you are guaranteed at Detention
incarcerated the end of parole
period

Found guilty Before Non-Parole Parole Possible After

and sentenced Incarceration Period Released
to
imprisonment
When released:

Protective Deportation: Sex

Custody: For all for non-Aus Offenders
or part of the citizens in Aus Registrati
sentence for less than on: Get
1o years places on
facing more register for
than 12 serious
months Jail offences
time
Purpose of Punishment

Deterrence (general or specific)

Retribution

Rehabilitation

Incapacitation
1. Security Classifications

Once you’ve been found guilty and found guilty and sentenced to imprisonment, the
next decision is WHERE they should go to prison.

There are over 30 prisons in NSW and the Department of Corrective Services makes
a decision about where the offender should go.

This is worked out by giving each prisoner a category for their security classification.
1. Security Classifications

Category A prisoners are dangerous

Category C the least serious and

Category E prisoners are escape risks

This helps with which prison they are going to (Maximum, Medium or Minimum
Security).

The prison at Goulburn is a “Supermax” prison for the most dangerous killers, serial
killers, gang leaders etc).
2. Protective Custody

Some prisoners are put in separate areas of the prison (or moved elsewhere).

This is often because their lives are in danger (e.g. they are informants, they are in
prison for child related offences.
Police V Power (2007): Patrick Power former deputy DPP found guilty of being in possssion of
child pornograpy. He got 15 months imprisonment, but only served 8 months because he was in
protective custody the whole time. According to the law being in protective custody is worse than
being locked up with other prisoners because of the isolation. Apparently it is harder to do time by
yourself.

Chief Magistrate Henson: “The Department acknowledges the accused would need to be placed
in protective custody for his own safety”
2. Protective Custody

Since 2010 Prisoners now have to PROVE that they face a tougher condition than
other inmates BEFORE they get a sentence discount for the extra hardship that might
come with being stuck in protective custody.
3. Parole

If you get parole, you are released from prison on certain conditions. Technically, you
are still serving your jail term, but you are being slowing being reintroduced into the
community.

The decision to grant parole is made by the Parole Board.

They look at things like:

- The inmate’s conduct whilst in prison

- Whether parole is in the interests of the community
- How well the inmate will reintegrate into society.
3. Parole

BOCSAR found that prisoners released on parole were more likely to be reconvicted
than those released without supervision. The report found that 64.5% of inmates
released on parole reoffended compared with 58.7% recidivist rate for those not
released on parole.
Monitoring trends in re-offending among offenders released from prison, BOCSAR (2008)

NSW A-G v Chiew Seng Liew (2012)- Regarding the murder of Dr Victor Chang

See article regarding decision here: Herald Sun: Victor Chang’s killer Chiew Seng Liew walks free from Jail.
4. Preventative and Continued Detention

Preventative detention is classified as the harshest time of sentence. It involves a

person being imprisoned for some type of future harm that they may commit. The
person is detained in custody without actually committing a crime or being found
guilty. These individuals are kept in preventative custody as they are considered to
constitute a considerable risk to the community.

Two types of preventative detention: Post-Sentencing Preventative detention

4. Preventative and Continued Detention
Two types of preventative detention:

1) Post-Sentencing Continued detention: this is where an individual has already

served a custodial sentence however is kept in custody for a longer period of time
due to them being deemed a risk to society (e.g showing no signs of
rehabilitation).
a) NSW has a scheme of post-sentence preventative detention under the Crimes (Serious Sex
Offenders) Act 2006 (NSW) that allows for continued detention of offenders serving a sentence for
a serious sexual offence. The Attorney General can apply to a court for continued detention of the
offender if satisfied ‘to a high degree of probability’ that the offender is likely to commit another
offence. Purpose to ensure the safety of community and facilitate rehabilitation.
4. Preventative and Continued Detention

Two types of preventative detention:

2) Preventative Detention targeting the individual/groups: High Court case Kable

V DPP (1996). However most states have legislative powers allowing
preventative detention such as the Terrorism (Police Powers) Act 2002 NSW
which allows police to make an application to detain a person suspected of being
involved in terrorist activity in custody for a maximum period of 14 days.
UPDATE: Terror Related Offences

Post-Sentencing Considerations

Proposal to introduce Continued detention for convicted terrorists that remain

radicalised after their judicial sentence is completed. Change legislation to allow for
these individuals to be further removed from society. Under these new changes to the
Criminal Code these individuals would face an extended sentence if they show no
evidence of rehabilitation. A similar system of continued preventative detention exists
for child sex offenders and violent individuals.
UPDATE: Terror Related Offences

Post-Sentencing Considerations

Human rights violations are accepted by the Government with the protection of society
as a whole taking priority over the individual

LATELINE- News Clip

5. Sexual Offenders Registration

The Australian National Child Offenders Register (Federal)

NSW Child Protection Registry (State) established under Child Protection (Offenders
Registration) Act 2000 (NSW).

Adult offenders are registered for a minimum of 8 years, juvenile offenders 4 years.

Q Read the following page and write 3- 4 sentences on the issues with existing
registers as outlined by Hinch and what proposals he is making to remedy this
Derryn Hinch’ Justice Party
6. Deportation

Under the Migration Act 1968 (Cth), a migrant living in Australia who is not a citizen
may be deported if they are tried and convicted of a criminal offence.

If a non-citizen commits a crime within the first 10 years of living in Australia in

which they receive a judicial sentence of 12 months or more the Minister for
Immigration may decide they should be deported from Australia back to their country
of origin.

The problem lies within the inability of Australia to monitor or follow up on the
individual once moved outside Australian jurisdiction.
6. Deportation

Further problems lie in the fact that an individual could have lived in Australia for
decades and once deported may have no family, no support network, not speak the
language and no systems to support their rehabilitation They may also never be
allowed re-entry into Australia to see their family and friends.

Chie Seng Liew case can be used to cover this sub-point too.

Also p. 83 of textbook Robert Jovicic case.