The Northern Territory and South Australia, in their dangerous offender legislation, focus particularly on sexual offenders. The Criminal Code Act 1983 (NT) and the Criminal Law (Sentencing) Act 1988 (SA) allow for the indeterminate incarceration of a person deemed a habitual criminal or incapable of controlling his sexual instincts. In both jurisdictions, release is by way of an order from the Supreme Court.
The state of Victoria was without dangerous offender legislation until 1990. In that year, a dangerous sexual offender was due for release from a Victoria prison. Garry David had a long history of violent offences and made known plans to commit further acts of violence upon release. David was diagnosed with an anti-social personality disorder but could not be held under mental health legislation because his disorder was not a mental illness (Wood, 1990). In response to the David case, the Victorian government passed the Community Protection Act 1990 (Vic). The Act's preamble specified that it applied to Garry David exclusively. It allowed the Supreme Court to put David into preventive detention if he posed a serious risk to the community and was likely to commit another act of violence. The Act also exempted itself from any evidence laws, making David subject to any clinical examination. The Act provided for a maximum order of six months' detention with a renewal option (Wood, 1990).
In 1993, the Community Protection Act was repealed and new provisions for indeterminate sentencing were added to the Sentencing Act 1991 (Vic). An offender can now be indeterminately incarcerated if there is a high probability, given the offenders character, the nature of his offence, and any other relevant circumstances, that the offender poses a serious threat to the community. The court must consider, additionally, psychiatric evidence as to the dangerousness of the defendant. A nominal sentence must be stated (the sentence the offender would have been given if he was not dangerous) and the indeterminate sentence must be reviewed when that period of time has passed.
Many criticisms of the Australian dangerous offender laws have been raised recently. One common criticism is that Australian dangerous offender laws ignore the principle of certainty in sentencing (Magazanik, 1993b) and would be better suited to a totalitarian society (Magazinik, 1993a). The preventive sentencing provisions in Australian criminal law can be criticized in much the same manner as those in other nations: these measures punish offenders for crimes not yet committed and may work against future rehabilitation and reintegration of offenders. Another major concern in Australia is the considerable disparity that exists in the requirements for dangerous offender status and in the available sentences for such offenders across jurisdictions. Age and offence requirements, indeterminate or fixed sentencing provisions, and review procedures are quite different from state to state.
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