Although it is generally accepted that penalties like imprisonment are designed to be punishment for offences already committed, in some cases, custodial sentences are also used as prevention against future crimes.
For example, continued detention orders in NSW can be used to keep high-risk sex offenders in prison even after they have served the term of their sentence.
These orders are highly controversial and many organisations, including the NSW Law Society, believe they are unethical and unfair.
How do continued detention orders work?
Continuing detention orders are sanctioned by the Crimes Act 2006, and are used to detain a serious offender past the length of their sentence on the basis that they could be a danger to the community if they are released.
Under the legislation, the offender needs to be in prison for sex offences and be considered at high risk of reoffending.
A continued detention order can only be given during the last six months of an offender’s sentence.
Continued detention orders are given at the request of the NSW Attorney General after a review of the offender’s case and situation by a magistrate.
They can last for a period of up to five years, and during this time the offender will not be considered eligible for release on parole.
Psychiatric assessments are taken into consideration when deciding whether to impose an extended supervision order, along with the offender’s previous history and certain other indicators that are believed to suggest a higher risk of recidivism in sex offenders.
In order to go ahead, a continuing detention order needs to be approved by the Supreme Court, and the process of application takes around three months to complete.
If the application for a continuing detention order is refused, the offender may be given an extended supervision order instead.
What is an extended supervision order?
In some cases, a continued detention order won’t be considered appropriate and the offender may be given an extended supervision order, which means they will be released into the community but under additional supervision to reduce the risk of them reoffending.
An extended supervision order is considered less severe than a continuing detention order, as it allows offenders to be released, although the supervision requirements can still be onerous.
Are continued detention orders fair?
Those who are against continued detention and extended supervision orders, including the Law Society of NSW, believe that they effectively punish offenders for crimes that haven’t, and might never be, committed.
There are concerns that it is difficult to predict with any certainty whether an offender will reoffend, and that these orders take power away from the courts.
The basis for issuing continued detention orders generally lies in research on recidivism rates by sex offenders, and with the view that certain serious sex offenders pose a danger to the wider community if released and that it is in the best interests of the community for them to remain in jail.
Although there may be certain characteristics and patterns of behaviour that could indicate an increased risk of re-offending in sex offenders, the Law Society believes that continuing detention orders are a way of re-punishing offenders for the same offence.