Tasmanian legislation allows courts to declare a person a dangerous criminal if they fulfill certain criteria. A declaration that an offender is a dangerous criminal means that the person is not released from custody until the declaration is discharged. In practice, this can mean that an offender remains in custody for many years beyond the end of their sentence.
Unlike similar regimes in other states and territories, the Tasmanian dangerous criminal regime does not require the continuing detention of offenders to be periodically reviewed. For this and other reasons, the system has received a lot of criticism in recent years, with prison advocates calling for the law to be reformed.
Who can be declared to be a dangerous criminal?
Under Section 19 of the Sentencing Act 1997, a person can be declared to be a dangerous criminal if:
- They have been convicted of a crime involving violence; and
- They have at least one prior conviction for a crime involving violence; and
- They are at least 17 years of age; and
- The judge considers that the declaration is warranted for the protection of the public.
How does the court decide whether to make a declaration?
In deciding whether to declare an offender to be a dangerous criminal, the court must consider:
- The nature and circumstances of their crimes;
- The offender’s antecedents or character;
- Any medical or other opinion;
- Any other matter the judge considers relevant.
What happens when a person is declared a dangerous criminal?
When the court declares a person to be a dangerous criminal, it must sentence them to a term of imprisonment for the crime of which they have been convicted. The offender will then remain in custody until the declaration is discharged.
Discharge of dangerous criminal status
Under Section 20 of the Sentencing Act, a person who has been declared a dangerous criminal may apply to the Supreme Court to have the declaration discharged. The Supreme Court must discharge a dangerous criminal declaration if it is no longer warranted for the protection of the public.
If a person applies to have a dangerous criminal declaration discharged and the application is unsuccessful, the person may submit a further application after two years have expired, or after the expiration of a lesser period as allowed by the court.
The discharge of a dangerous criminal declaration does not affect any sentence of imprisonment imposed on the offender.
Procedure for application
When an application is made for the discharge of a dangerous criminal declaration, a judge may require the parties to take part in a conference to ensure the proper consideration of the application. At a conference, the judge may give directions to parties in order to expedite the application, determine questions of law or procedure and give directions in order to resolve and issues or matters necessary to resolve before the hearing.
When the court makes a decision on an application for the discharge of a dangerous criminal declaration, a party may appeal against that decision to the Court of Criminal Appeal.
The Tasmanian provisions allowing offenders to be declared dangerous criminals have been criticised as unfair and inhumane by prisoners’ rights advocates who say that offenders declared dangerous criminals can be held in prison for decades after they would otherwise have been released because the legislation makes it so difficult for such a declaration to be reversed.
In 2017, the Tasmanian Law Reform Institute released a research paper on the detention of dangerous criminals, which detailed flaws in the current dangerous criminal regime.
Criticisms of the regime include:
- Imprisonment of offenders for indeterminate periods that has been described as crushing and counterproductive to the offender’s rehabilitation;
- The absence of any periodic review of dangerous criminal declarations or requirement that the state justify their continued imprisonment;
- The court cannot impose conditions upon the release of a person formerly subject to a dangerous criminal declaration;
- The legislation does not give a comprehensive list of factors to be considered by the court before making a dangerous criminal declaration;
- The regime has never been reviewed, despite receiving extensive criticism.
Tasmanian Attorney-General Elsie Archer has said that reforming the Sentencing Act is on the government’s agenda but that its first priority will always be keeping Tasmanians safe.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.