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Unsolicited (Letters to the editor)

Every Issue

Cite as: (2006) 80(12) LIJ, p. 8

Principles undermined by post-sentence detention proposals

This letter originally constituted a much longer submission to the Sentencing Advisory Council in response to its call for comments on the issues paper “High-risk offenders: continued detention and supervision options”.

The proposal to implement a system of post-sentence detention would further undermine numerous fundamental legal principles.

These include the principle of proportionality in sentencing, and the idea that a person should only be sentenced for crimes of which they have been found guilty. This is related to the principle that people should be punished for their criminal conduct rather than their criminal type. Finally, it undermines the principle against retrospective legislation as it requires that new laws and additional punishment be applied retrospectively.

Though these principles are not absolute, they should only be undermined as a last resort and where we can be sure that such measures would be the most effective means to achieve the purported aim of community protection. Thus the practical effectiveness of post-sentence detention laws needs to be considered.

An important point is the low recidivism rate of violent and sex offenders – 13-15 per cent, according to Professor Richard Wortley.

This means that such a law would only be focusing on a small minority of those who will commit sexual offences in the future.

As the issues paper notes, the truth is that the majority of these offences are committed by family members or acquaintances and go unreported.

Another major problem involves difficulties in determining whether an offender is at a high risk of re-offending. At the moment, it is almost impossible to accurately predict recidivism rates. According to Wortley, clinicians get it wrong almost as often as they get it right.

A further problem arises in that many clinicians believe that post-sentence detention laws can hinder the rehabilitation of sex offenders because the knowledge that they could be jailed indefinitely sees many offenders refuse to engage with counsellors and psychologists.

Also of particular concern is the negative impact post-sentence detention laws could have on sub-groups who are already over-represented in the legal system, such as the mentally ill and indigenous people.

The fact is we already have a number of strong laws to protect the community in this area, such as indefinite sentences and extended supervision orders.

Instead of adopting post-sentence detention perhaps our resources might be better spent raising reporting rates within communities and making a greater commitment to the rehabilitation of offenders.

Jonathan Ciullo
Monash University law student

Deposit release torture

Property practitioners will all be aware of the time/stresses involved in the process of obtaining early release of deposit under s27 of the Sale of Land (Deposits) Act when acting for vendors.

We are all aware that s27 was enacted to protect purchasers in the impecunious “fleeing-vendor syndrome”.

This is all well and good, but the protection could apply just as well by enacting that deposits must remain either in a trust account or a term deposit at the trustee’s bank until settlement with the interest following the stake. Deposit bonds would solve any problem for a buyer needing a deposit for a new property.

I seem to spend a disproportionate amount of the file time on s27 matters involving preparing privacy authorities to send to lenders (most of whom have different requirements), getting loan numbers/bankers’ details from clients, dealing with loans that have redraw facilities, dealing with agents that are overly keen for early release, and cajoling purchasers’ lawyers on behalf of some vendors who feel that 28 days is an unreasonable time for their money to be tied up.

I dealt recently with a NSW vendor of a Victorian property who, on me asking her for bank details to prepare a s27 statement, told me in no uncertain terms that in her state deposits are not released until settlement and she did not expect to see any deposit until settlement.

What a breath of fresh air. I would urge practitioners to make their feelings known through the LIJ and for the Law Institute of Victoria to give some thought to the problem.

Chris Southall
Solicitor, Prahran

Thomas charges corrected

I am writing to draw attention to a factual error on page 4 of last month’s LIJ.

On that page the president, in referring to the case of Jack Thomas, stated that a jury acquitted him of the two most serious charges – training for and participation in the planning of terrorism.

The jury acquitted Mr Thomas of charges that he had provided resources, namely himself, to a terrorist organisation while in Pakistan (count 2) and had agreed to do so on his return to Australia (count 3).

Mr Thomas was not indicted on a charge that he had trained for and participated in the planning of terrorism.

Incorrectly the article goes on to state that “He was acquitted by the Victorian Court of Appeal of the two lesser charges – receiving funds from a terrorist organisation and possessing a false Australian passport”.

The formal order of the Court in allowing Mr Thomas’ appeal against his convictions on 18 August 2006 was to quash the two convictions.

The Court of Appeal has received written submissions on the question of whether a retrial should be ordered or acquittals entered and it is expected the appeal will be re-listed for further hearing in December.

Mark Pedley
Deputy Director
Commonwealth Director of Public Prosecutions

ILSLAV correction

An error was made in the caption that appeared on p16 of the November LIJ. The names underneath the photograph should read (from left to right) ILSLAV president Bevan Mailman and Victorian indigenous barrister Linda Lovett. The LIJ apologises to ILSLAV and Ms Lovett for the error.


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