New Law Grants Qld’s Attorney General Power of Indefinite Detention.

New powers enable Qld's Attorney General to indefinitely detain prisoners

New powers enable Qld’s Attorney General to indefinitely detain prisoners

The Public Interest Declarations Act amending the Dangerous Prisoners (Sexual Offenders) Act represents a significant change to the way the law is applied in Queensland and throughout Australia.

We have, until now had a clear delineation between the role of the executive and the implementation of the law by the judiciary.  The parliament has been elected to make law and our courts have interpreted and applied those laws.  This new piece of legislation departs from that process, by enabling the Attorney General to overrule the decision of the court and detain a person.

Previously, applications to have prisoners detained indefinitely were brought by the Attorney General. The cases were determined by reference to the principles set out in the Dangerous Prisoners (Sexual Offenders) Act and in accordance with the evidence.

The new Act allows the Attorney General to:

  1. Imprison an offender without scrutiny and,
  2. Imprison an offender without evidence for the first 12 months and,
  3. If he thinks the case is “urgent” he need not give the offender an opportunity to argue against his imprisonment.

There are no limitation or established set of principles established in the legislation to guide the Attorney General in his decision making process or to determine which of the many offenders presently supervised under the Dangerous Prisoners (Sexual Offenders) Act may be imprisoned on the Attorney General’s declaration.

The Attorney is not required to give reasons to justify his action, or to ex­plain why he thought an offender should be removed from the jurisdiction of the court and the law.

Effectively the parliament has granted the Attorney General the power of arbitrary detention to a minister of the Crown.  The only feasible rationale for the new legislation is that the Attorney General has lost confidence in the Judiciary to appropriately exercise discretion.

MANDATORY SENTENCES

 

Mandatory sentencing has always been actively contested and denounced for years by bodies such as the Queensland Law Society, the Queensland Sentencing Advisory Council as well as other civil libertarian associations throughout the state.
Jail Cell
Mandatory sentences do not work.

 

Magistrates and Judges, although bound by legislation, are usually given a wide discretion to determine the appropriate penalty for various offences. The legislation generally prescribes minimum and maximum penalties that ought be imposed.
One of the cornerstones of a just and fair judicial system, is the discretion afforded to our courts in sentencing offenders. There is no such thing as a “standard offence”. The circumstances  of each  offence, like the personal circumstances and antecedents of an offender  are almost never the same. A judicial discretion takes these matters into account.
All mandatory sentencing does is increase the prison population at substantial additional cost with no benefit to the community.   It has been proved to be unreasonable and counter-productive in the past in Queensland, the Northern Territory and Western Australia.”
Qld Law Society President John de Groot.
Generally, a sentencing ranges are established through precedent and the decisions of the superior courts (District, Supreme, Court of Appeal and ultimately High Court). An aggrieved party, either the Attorney General or the convicted person, can appeal the decision based upon either the inadequacy of the sentence or its excessive term.
Sentences imposed by the superior courts generally bind both Magistrates and Judges, as they must show parity across the sentencing range with their judicial colleagues.  Nevertheless, sentencing judges still hold the ultimate discretion in deciding what the appropriate sentence range is having regard to the circumstances and nature of the offence and the offender.
Gatenby Criminal Lawyers is opposed to any mandatory sentences either in respect of periods of imprisonment, fines to be imposed or disqualification periods. It is our view that all matters turn on the merit of the facts and the circumstances of the offender. The “one sentence suits all” is misguided and leads to unfairness and prejudice.
If you have been charged with an offence that carries a mandatory sentence, call Gatenby Criminal Lawyers now  on (07) 55800 120 and speak with one of our experienced criminal solicitors. The first consultation is free.  We may be able to highlight a defence to the charge or alternatively negotiate an alternate charge not having a mandatory sentence.

SENTENCING CONSIDERATIONS

It is an important sentencing principle that parity exist in sentences imposed for like offences.  In a diverse state such a Queensland, with three levels of Courts; Magistrates, District and Supreme, there needs to be an overriding set of guidelines to ensure that sentences imposed upon offenders are consistent.  The Penalties and Sentences Act sets out the parameters within which the courts must operate.

The legislation does this by setting out the purpose of imposing sentences and then establishes the principles that the Court is to apply in achieving those purposes.

The purpose of imposing a sentence can be classified as one or more of the following:

  1. To punish the offender to an extent or in a way that is just in all the circumstances;
  2. To provide conditions will help the offender to be rehabilitated;
  3. Deterrence, both personal and general;
  4. Denunciation of the offending conduct;
  5. Protection of the Queensland community from the offender;

In most non-violent offences the starting point in sentencing is that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable.

The Court must also have regard to the maximum and any minimum penalty prescribed for the offence and how serious the offence was, including any physical, mental or emotional harm done to a victim.  Particular regard is to be had to the effect of the offence on any child under 16 years who may have been directly exposed to, or a witness to, the offence.  The court should also have regard to the prevalence of the offence.

Consideration is also had to the extent to which the offender is to blame for the offence and the presence of any aggravating or mitigating factors such as any damage, injury or loss caused by the offender.

Matters particular to the accused are also relevant such as the offender’s:

  1. character,
  2. age;
  3. intellectual capacity;
  4. assistance given to law enforcement agencies in the investigation of the offence or other offences.
  5. time spent in custody awaiting sentence;
  6. sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing;
  7. compliance with previous community based orders
  8. attendance at a rehabilitation, treatment or other intervention program or course while on bail.

Each of these principles is to be taken into account in determining the appropriate sentence.  What often becomes difficult for the sentencing court is to balancing the various competing interests.  An experienced criminal lawyer is able to highlight the positive features, and mitigate the sentence imposed.

TWO STRIKE LAW FOR SEX OFFENDERS

The Criminal Law (Two Strike Child Sex Offenders) Amendment Bill 2012 amends the Penalties And Sentences Act 1992 to insert a new major Tory sentencing regime of life imprisonment for certain repeat child sex offenders and further amends the Corrective Services Act 2006 to prescribe a minimum non-parole period of 20 years imprisonment for an offender sentenced to mandatory life imprisonment under the new sentencing regime.

The new regime applies where:

  1. An adult offender is convicted of a relevant serious child sex offence (as defined in the Bill):
  2. Such offences committed after the commencement of the bill:
  3. The offender has a prior conviction as an adult for a relevant serious child sex offence stop paragraph the second offence is committed after the conviction of the first offence.

The court in sentencing the offender on that second occasion, must impose life imprisonment which cannot be mitigated or varied.

In our view the fettering of judicial discretion is unfair, unworkable and contrary to our international treaty obligations. Nonetheless the bill has now passed and mandatory periods of imprisonment apply or possession of weapons as categorised above.