QLD INDEFINITE DETENTION 'IN A NUTSHELL'

Queensland Labor Attorney-General Rod Welford 'Indefinite Detention'

In Queensland prison sentences have become step-by-step more lengthy over the last decade according to prisoner Mr David Minty who has been in jail for 20 years.

The introduction of new legislative policy to keep prisoners indefinitely can mean we are never to be released. These changes will have an effect on my sentence and I can now expect to die behind bars.

Because I have been unable to establish strong ties in the 'outside' community my category of prisoner will come under the proposed policy that will not be granted parole.

The Queensland Attorney-General Rod Welford has taken the unusual steps by taking sex offenders to court right at the time of their release and making sure the keys were thrown away.

There were others before, that during sentencing, the Attorney-General took 'leave' of the Sentencing Court and asked for an 'indefinite Sentence' to be handed down, and which a number of felons received. Both these categories of prisoners are 'locked in' to a regime of 'never to be released'.

Several more categories of prisoners are now being targeted.

Queensland defies U.N. conventions by retaining mandatory sentences of ' life means life' for the offence of murder.

Legislations increase the number of offences able to carry a 'life sentence'. One such legislation in the early nineteen-nineties was for a hardcore-drug offence and gave new meaning to mandatory but only for that category of sentencing.

Those convicted under that 'Act' were given 'mandatory life-sentences' and it did mean; never to be released from prison. That was repealed several years later.

It could be argued that news only carries reports of lenient sentencing or early release of felons and never shows that these circumstances are extremely exceptional and not usually the rule. The whimsical (or manipulative) policies of prison administration distort the 'long-term sentenced' prisoners' sentences.

My sentence plan history has been rewritten with little regard that it was an abuse of process and therefore unlawful to do so.

He says there are devices such as an 'Offender Risk Needs Inventory' a questionnaire that is in many cases implemented in a capricious and deceptive fashion; and with much secrecy; and my evidence is that my score dramatically rose in a space of 2 years without any good reason.

A judge obligated to hand down a mandatory sentence to a person convicted of murder has no discretion; legislation dictates there is no alternative other than handing down a 'life sentence'. This was once referred to as an 'Indefinite sentence' but became 'Indeterminate sentence' when the so-call 'Serious Dangerous Offenders Bill' was being enacted becoming a separate category where felons would be convicted under the 'Act' (Penalties and Sentences Act section 172) and be sentenced to a statute 'Indefinite Sentence'.

Where 'Indefinite' was reserved for the worst of the worst offences, the mandatory 'life-sentences' a judge delivered were hardly ever intended that the prisoner would not be granted parole after a considerable time. That is if the prisoner showed redeeming merits and was rehabilitated or habilitated (taught how to live).

'Queensland Community Corrections Board' (Parole Board) the authority who would give parole to 'long-term - sentenced' prisoners is in March 2005 closing down its 'Release to Work Centres' which used to trial prisoners as a staging-post before being paroled.

Elsewhere in the system 'Leave of Absences' have become almost nonexistent for prisoners to re-establish community ties. Once a prisoner could achieve a day leave program. 'leave' to be with family or a suitable sponsor for a day every month, near the completion of the custodial segment of a sentence. Now, there are very few prisoners on prison farms receiving ' leave' now, one only at the prison farm 'Numinbah'.

It is proposed that in June 2005 'Indeterminate sentenced' prisoners', generally the most changed and benevolent prisoners, will not be given parole if they don't have strong community ties such as family to go back to. Therefore disadvantaged prisoners who have lost all contact out in the community after 15 to 20 years have lost many opportunities and will 'fall through the cracks' buried, remain in jail, institutionalised, indefinitely.

It is cruel and unusual punishment (not having a sentence defined) and I am applying to the Supreme Court for relief (from being denied 'natural justice'), A previous action I took was heard on 31 October 2002, under the 'Penalties and Sentences Act 1992' Section 171(1)(a) ' Application to Review Sentence'. I attempted to point out to the court that 'Indefinite ' and 'Indeterminate' meant the same and instead of coming under an unaccountable parole board and that I should have the benefits of applying to the court as an 'Indefinite - sentenced' prisoner and have my merits weighed by a court.

Prisoners would not need to be seeking help or to have their 'rights' confirmed from a court if Queensland followed other States and set-up 'Merits Review Tribunal'.

I conclude with a bit of witticism and a degree of cynicism that the Queensland public can be assured that the public servants are ensuring that taxes are being increasingly spent on making a vast and monumental infrastructure and permanently banishing outcasts from society.

They're not afraid of the law as they believe they are the law, and often manipulate legislation, and will do what is necessary by stealth if need be.

Politicians have opted for the soft-option and have abandoned recycling - rehabilitation. It's all a bit like the 'Transportation' policy when Britain exiled the forefathers to this great free nation of ours, Australia.

By David Minty 16 February 05

In Other Developments:

KERRY O'BRIEN: Law and order has become the hobby horse of state politicians around the country in response to a public perception - rightly or wrongly - that violent crime is on the increase?

DR DON WEATHERBURN: Most of the error in judging crime trends comes from a general tendency to think crime is rising when it is actually stable or falling.

JUSTICE ACTION: Actually violent crime is not on the increase and statistics say its been stable over the last decades.

Now the Queensland Government has a law that would allow the indefinite detention of dangerous prisoners beyond their full sentence, if they're deemed to pose a threat to society on release.

JUSTICE ACTION: But more importantly if the QLD Department of Corrective Services fail to give the prisoners programs and instead punish the prisoners throughout the term of their sentence then the department failed the community.

PETER MCCUTCHEON: If you do the crime, you serve the time. But, in Queensland, that time may be stretched out indefinitely to prevent possible crimes in the future.

A 54-year-old multiple rapist, Robert John Fardon, is the first prisoner to face the Queensland Government's draconian pre-emptive imprisonment laws.

JUSTICE ACTION: What did the taxpayers pay for at $60,000 dollars a year for 14 years that's $840,000 dollars?

PETER MCCUTCHEON: The government wants him to remain behind bars, despite having completed a 14-year jail term.

JUSTICE ACTION: If you take your car to the panel beater to fix a damaged panel and they return the car to you written off do you pay for the repairs?

ROD WELFORD, QUEENSLAND ATTORNEY-GENERAL: At the end of the day, the balance we've struck is that it's safer to detain these people pending a review of their capacity to make it outside prison rather than everyone else in the community locking themselves up to protect themselves from them.

JUSTICE ACTION: But in the grand scheme of things the balance you struck was to make taxpayers pay you for your mistakes. In this case you had this person in your care for 14 years and ended up with a write off, after you've been paid to rehabilitate prisoners.

Then after you have failed to do your job you want taxpayers to continue to pay for your failures why? Why hasn't the standard of a human being been lowered in over 200 years? Have people suddenly developed bad genes and cannot learn?

PETER MCCUTCHEON: This radical new approach to crime prevention is under challenge, sparking a new debate about security and liberty.

CATHY PEREIRA, PRISONERS' LEGAL SERVICE: We think that this is a law that fundamentally undermines the criminal justice system in Australia and it's quite novel in the sense that, for the first time, it's asking the courts to make a guess about whether a person is going to commit a criminal offence in the future.

HETTY JOHNSTON, BRAVEHEARTS: What's happening here is we're just pussy footing around. If what we're trying to do is to protect the community, protect innocent children, then let's do it. And, if that means turning the law over on its head, then let's do that too.

JUSTICE ACTION: Yes but you don't protect the community by lowering the standards of a human being because the QLD Department of Corrective Services failed to implement proper programs in prison.

Why wasn't there an 'independent' inquiry to find out the facts of Fardon's incarceration? Was this man delivered the programs or was he blocked because of the Departments discrimination and treatment? So before legislation is radically changed and before we lower the standards of a human being we should have first found out the facts of his incarceration and what this man was offered in prison.

PETER MCCUTCHEON: Earlier this year, the Beattie Government was severely embarrassed when it had to make an 11th-hour bid to ensure a notorious paedophile - Dennis Raymond Ferguson - was released from jail on the condition he report to police.

PETER MCCUTCHEON: At the height of the controversy, the Beattie Government announced new laws to detain the state's most dangerous prisoners'. Ten months later, with a state election in the offing, the State Supreme Court is being asked to apply these laws for the first time.

In some ways, Fardon is an ideal test case.The Supreme Court this week was told that on at least four occasions Fardon said he would kill or commit a crime to return to jail rather than face the daunting prospect of reintegrating into society?

But there's an added complication - the court has also been told Fardon was apparently a model prisoner, and today in court he apologised to his victims, pledging not to re-offend. Prison rights advocates say more resources should be put into helping prisoners settle into life outside, not locking them away.

CATHY PEREIRA: By warehousing one person or two people or perhaps a small group of people, that does not do anything overall for the community, to protect the community. If we're looking at community protection, then put the resources into the community.

PETER MCCUTCHEON: So you see it as a token gesture for political purposes?

CATHY PEREIRA: Absolutely. It's a token gesture.

PETER MCCUTCHEON: The Prisoners' Legal Service says these laws are ultimately about trying to protect the government from embarrassment should a dangerous prisoner re-offend. Do you concede these laws are politically convenient?

ROD WELFORD: Well, it's not just the government that's embarrassed if serious violent sex offenders are released from prison and re-offend. We've had prisoners who've been released from prison and re-offended within weeks.

JUSTICE ACTION: Ultimately these laws are also about protecting the government from admitting their failure when they haven't provided any programs to the prisoners at $60,000 dollars of taxpayers money a year and in Fardon's case that ends up being $840,000 dollars? In addition to that the cost of keeping him in jail and many others indefinitely will be incredible,

PETER MCCUTCHEON: The Dangerous Prisoners Act requires the court to determine whether there's a high degree of probability of a prisoner re-offending. Criminologist and psychologist Dr Stephen Smallbone says, from a scientific perspective, that could be unworkable.

DR STEPHEN SMALLBONE, CRIMINOLOGIST, GRIFFITH UNIVERSITY: If we put everybody who is in custody at the moment in Queensland for a sexual offence against the child together, we could be fairly sure that a certain percentage of those will commit new sex offences.

The problem is that, if we just then look at that particular subgroup of high-risk offenders, we're going to get it wrong about 25 per cent to 30 per cent of the time.

ROD WELFORD: I know that there's a nice academic argument going on about the potential for prediction about whether someone will re-offend. But the people we're talking about already have a track record and commonsense and close interaction with these people will give people with skills the capacity to make a reasonable assessment, in my view.

PETER MCCUTCHEON: Child rights advocates like Hetty Johnston from Bravehearts also have little time for the problems of predicting criminal behaviour.

HETTY JOHNSTON: We're saying there IS going to be a balance here and it's a risk - what if they don't re-offend, what if they do? In the balance is children and children's entire lives and families' entire lives and we say you have to balance that up in the best interests of the child, not in the best interests of the offender.

JUSTICE ACTION: But who's ultimately responsible for not delivering appropriate programs in prison? Who is placing children at further risk by not ensuring that prisoners get programs instead of punishment?

CATHY PEREIRA: We have to keep in mind that the only thing between ourselves and arbitrary detention is the law. If we undermine that, then it undermines the protection that is available to every citizen.

PETER MCCUTCHEON: Whatever the Supreme Court decides, the debate will continue. Fardon's legal team has lodged special leave to appeal to the High Court, arguing the Queensland legislation breaches the separation of powers under Australia's Constitution.

ROD WELFORD: There's no doubt that any law that provides for the continuing detention of a person beyond the period of their defined sentence for a particular offence will be controversial and subject to legal debate. I'm happy for that legal debate to occur, and I'm happy for the matter to be ventilated in the High Court. The High Court ultimately will determine the outcome.

Related:

Indefinite detention means the government owns its citizens
A convicted rapist detained indefinitely in a north Queensland jail has lost a High Court appeal against his detention. Robert John Fardon was due for release more than a year ago but remains in custody under controversial Queensland legislation.

Tony still seeking release after half a lifetime inside
After serving imprisonment continually since February of 1956, because of his age 74, he suffers from high blood pressure, angina, has survived a mild stroke and two major strokes in the past few years, leading to mobility problems on gradients and he continues to have irregular heart problems.

'Lifers' swap cells for nursing beds
A MURDERER and a child molester each judged too dangerous to ever be free of the prison system have been paroled to ordinary nursing homes where other residents have not been told about their pasts. Child sex offender Phillip Adamson and murderer Percy David Bond, who were both in poor health, were moved in recent weeks. Both have spent more than 30 years in jail and both were sentenced under conditions that mean they will never technically be released.

US Challenges of Parole Denials rejected

The California Supreme Court decided Monday to limit sharply the ability of inmates to challenge parole denials, ruling that the parole board has the right to keep a convict in prison simply because of the nature of the crime that sent him there.

The state Board of Prison Terms, which has a history of seldom granting parole, has wide flexibility to deny release to convicted criminals even if they have been model inmates deemed not dangerous by mental health officials, the 4-3 decision said. The ruling is expected to keep behind bars thousands of inmates who are eligible for parole.

Monday's ruling came in the case of John A. Dannenberg, 64, who was convicted of the second-degree murder of his wife in 1985 and sentenced to a term of 15 years to life. Dannenberg has a spotless prison record and favorable psychological evaluations, and his two adult children support his release.

In 1999, the parole board rejected his third request for parole, saying he had committed the murder "in an especially cruel or callous manner" and had "a very trivial" motive to kill. Dannenberg then appealed, saying his record since he was put in prison should have made him eligible for release.

A trial court and Court of Appeal both sided with him. But the Supreme Court disagreed. Even though Dannenberg's record has been clean, the board had the right to deny parole based solely on the nature of his crime, the majority said.

The board "may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually," Justice Marvin R. Baxter wrote for the majority.

In dissent, Justice Carlos R. Moreno said the ruling required "judicial rubber stamping" of parole-board decisions. "Failure to grant parole where parole is due wastes human lives, not to mention considerable tax dollars," Moreno wrote.

If an inmate is denied parole because of the nature of the crime, the board should be required at least to compare the gravity of the offense and the time served to other cases with the same conviction, he wrote.

The majority rejected that idea, saying it would be too burdensome.

To require the board to compare the inmate's crime and time served to that of other inmates with the same convictions would "contribute significantly to backlogs," Baxter wrote.

Dannenberg killed his wife, Linda, during a fight in their home in Los Gatos. The wealthy engineer had a stormy relationship with his wife, and she had received counseling for trying to harm herself and her children.

During an argument over a blocked bathtub drain, Dannenberg beat her with a pipe wrench. He claimed she first attacked him with a screwdriver while he was attempting to fix the drain.

Dannenberg told police that he passed out momentarily and woke up to find his wife slumped over the edge of the bathtub with her head in the water, where she had drowned. He called 911 and was quickly arrested.

Dannenberg has been behind bars in San Quentin for 18 years. While in prison, he fixed the facility's electrical wiring and volunteered with an inmate education advisory committee and a Jewish religious group for prisoners, the court said.

In upholding the parole board's decision, Baxter, joined by Chief Justice Ronald M. George and Justices Ming W. Chin and Janice Rogers Brown, said Dannenberg had "reacted with extreme and sustained violence to a domestic argument?. "

"Though he vehemently denied it, the evidence permitted an inference that, while the victim was helpless from her injuries, Dannenberg placed her head in the water, or at least left it there without assisting her until she was dead."

Moreno countered that a second-degree murder conviction always means that a defendant acted violently, cruelly and out of proportion to the provocation.

Moreover, he said, the board had "an incentive to give only pro-forma consideration" to parole because of the risk that the person could re-offend and the parole board be blamed. [Yet the risk of re-offending for a domestic crime is at the very bottom of the range.]

"Dannenberg's present record is not only unblemished in terms of disciplinary infractions, but showed many positive signs of contribution to the prison community in which he lived," wrote Moreno, whose opinion was signed by Justices Joyce L. Kennard and Kathryn Mickle Werdegar.

Over the last 13 years, the parole board has denied release to more than 95% of the eligible inmates who applied.

Even the few approved by the board have not all been released. California is one of three states that allows the governor to override parole recommendations.

So far, Gov. Arnold Schwarzenegger has accepted about 36% of the board's parole recommendations. Former Gov. Gray Davis approved just 1.7%. His predecessor, Gov. Pete Wilson, approved 67% of the applications that came before him.

Deputy Atty. Gen. Susan Lee Duncan, who represented the state in the case, said the state Supreme Court had made it clear that the parole board has been acting properly.

"They don't have to consider whether this is more serious or less serious than any other offender's crime," Duncan said. "It is strictly a case-by-case consideration, comparing this man and this crime to public safety."

Kathleen Kahn, a lawyer who represented Dannenberg, said the ruling "ratifies" the board's behavior and "allows the board to be as frankly political as it wants to be."

"A few judges in a few counties have really stuck their necks out and said what the board has been doing is really a violation of the law," Kahn said.

"I think this opinion is written as a reprimand to those judges."

Tip Kindell, a spokesman for the Board of Prison Terms, said it was pleased that "our position was validated by the Supreme Court." [By the ruling class? The Supreme court has also approved Guantanamo Bay Cuba!]

By Maura Dolan posted 28 January 05

Related:

USA

New Strategies for Curbing Recidivism
US: State and federal lawmakers are finally realizing that controlling prison costs means controlling recidivism - by helping newly released people establish viable lives once they get out of jail.

Prison System Fails Women, Study Says
State policies designed for violent men make female offenders' rehabilitation difficult, an oversight panel finds. "If we fail to intervene effectively in the lives of these women and their children now, California will pay the cost for generations to come," said Commissioner Teddie Ray, chairwoman of the subcommittee that produced the report.

Restorative Justice and the Law
To acquire knowledge, one must study; but to acquire wisdom, one must observe."-- Marilyn vos Savant.

Restorative Justice Practices
Restorative Justice Practices of Native American, First Nation and Other Indigenous People of North America. This is part one in a series of articles about restorative justice practices of Native American, First Nation and other indigenous people of North America. The series is not intended to be all-inclusive, but rather a broad thematic overview. A related eForum article, "The Wet'suwet'en Unlocking Aboriginal Justice Program: Restorative Practices in British Columbia, Canada," can be read at:

The Long Trail to Apology
Native America: All manner of unusual things can happen in Washington in an election year, but few seem so refreshing as a proposed official apology from the federal government to American Indians - the first ever - for the "violence, maltreatment and neglect" inflicted upon the tribes for centuries.

England and Wales

Winning goals: Rethinking Crime and Punishment
I would reallocate resources within the prison service budget to give a higher priority to rehabilitation, retraining for future employment, and an improvement in literacy standards. During my own prison journey I was struck by the astoundingly high levels of illiteracy among prisoners. Tests show that about a third of all prisoners read and write at skill levels below those of 11-year-old schoolchildren.

London police may moor prison ship on Thames
UK: The London police are holding discussions about possibly mooring a prison ship on the River Thames in a bid to ease pressure on the spiralling prisoner population.

Prisons accused of ignoring age trend
UK: A 70-year-old prisoner who uses a wheelchair has to pay "unofficial helpers" six chocolate bars a week to help him get around and to collect his meals, according to an investigation by the chief inspector of prisons into the growing number of elderly inmates.

Australia

NSW Parole Board and the Politics of NSW Prisons
I refer to my complaints that the Parole Board and the Department of Corrective Services are acting contrary to imposed sentences and sentencing law principles.

Prison boom will prove a social bust
Hardened criminals are not filling NSW's prisons - the mentally ill and socially disadvantaged are, writes Eileen Baldry.

Crime and Punishment
Mark Findlay argues that the present psychological approach to prison programs is increasing the likelihood of re-offending and the threat to community safety.

Government justice not personal justice
Mr Brett Collins of Justice Action said, "Victims should be looked after properly by implementing restorative justice measures and victims should be compensated for their pain and suffering. " However prisoners are entitled to serve their sentences in peace and privacy as well."

Sentencing: Violent crime and practical outcomes
In addition introducing restorative justice programs giving the offender a chance to interact with the offended person if they wish and visa-versa. People are not "dogmatic" therefore should be given a second chance opposed to Life means Life!

Carr Govt dramatic increases in the NSW prisoner pop...
Following the opening of the 500 bed Kempsey prison, and a new 200-bed prison for women at Windsor the Council of Social Service of NSW (NCOSS) and community organisations specialising in the rehabilitation of prisoners, have expressed concern....

New Zealand

More jails will create more crime says expert
NZ: Once a world leader in restorative justice, New Zealand is regressing by locking more people up for longer, visiting expert Sir Charles Pollard says.