無期徒刑

New violent prisoner proposal flawed, say lawyers

LAWYERS say a NSW government proposal to keep violent prisoners that show no signs of rehabilitation in jail beyond their imposed sentence are flawed and threaten to undermine the justice system.

The NSW Law Society says it has serious concerns about the new legislation announced yesterday by Attorney-General Greg Smith who said his changes were about protecting the community from the "worst of the worst".

The changes, modelled on existing legislation for serious sex offenders, will allow the state to make an application to the Supreme Court to have a violent prisoner kept in jail or placed under extended supervision upon their release.

This can include the use of GPS tracking devices on released offenders.

The proposed laws follow a Sentencing Council report which stated the government "should introduce a continuing detention and extended supervision scheme for high-risk violent 'offenders"'.

But the legislation was yesterday praised by victims support groups.

Victims of Crime Assistance League spokesman Howard Brown said society expected judges to "have crystal balls" when sentencing, but they could not predict if an inmate would make any attempt at rehabilitation.

The chair of the NSW Law Society's criminal law committee, Pauline Wright, said if a prisoner misbehaves while in jail then then they can be charged and punished if convicted.

But, Ms Wright said, it was completely inappropriate to punish someone for "something they might do in the future". The proposed legislation could turn the "entire justice system on it's head", she said.

"It could have really serious effects," Ms Wright said. "If you start chipping away at the pillars of the justice system the whole thing can come crashing down and this is one of those fundamental pillars - you don't punish someone unless they've done something wrong and that is proven beyond a reasonable doubt."

The Australian Lawyers Alliance said Mr Smith's proposed legislation was flawed. Alliance spokesman Greg Barns said a person was entitled to know when they are sentenced to jail, what their term will be.

“What Mr Smith is proposing is that a further sentence of some years, towards the end of a sentence, be imposed, presumably at the behest of the attorney-general in order to keep a prisoner in jail for a longer period," Alliance criminal law spokesman Greg Barns said.

"This amounts to depriving a person of their liberty. Not for what they have done and for which they have been punished, but for what they might do in the future. Once again, this is fundamentally unfair.”
(24/9/2012 Sydney Morning Herald)

今天這則新聞，看了心有戚戚然。判刑時考慮一切因素及案例後，定出了適當的刑期，餘下的是犯人在獄中表現，決定刑期扣減的程度。以香港而言，判了監9年的囚犯，如果在獄中行為良好，加上假期，實際坐牢6年。最差的情況，也不過是坐足全期。新南威爾斯州提出草案，賦予政府權力，向最高法院申請，延長懲而不受教的暴民的刑期，聽起來是保障公益，使社會更安全。想深一層，這樣做十分危險，有違法治精神。如果囚犯在獄中犯法，可以受到檢控，刑滿出獄再犯，也可繩之以法。有期監禁，不能變成無期徒刑，這樣做有欠公允，豈不是為了他有可能再犯，先下手為强。那麼，不如挑他腳筋，毀他經脈，把他打殘，像葉繼歡那樣，更加乾淨利落。這樣做有點像大陸的行政拘留，沒有犯法，沒有定罪，先行判囚。