Indefinite Sentences
These orders are made at the time of handing down the sentence – cf Dangerous Prisoner Orders.
Proponents suggest these orders are necessary for community protection. But critics note flaws in predictions re recidivism, difficulties with proving dangerousness and possibility for error.
Under the Penalties and Sentences Act (Qld) 1992: An indefinite sentence continues until a court orders it is discharged (s162). The Court can impose an indefinite sentence on its own initiative or in response to a prosecution application (s163(1)). Such orders can only be made for qualifying offences, which means indictable offences listed in schedule 2, which include actual/counselled/attempted violence offences, such as manslaughter and armed robbery; or actual/counselled/attempted sex offences such as Unlawful Carnal Knowledge of a child under 12 yrs and Rape.
In making the order the court must determine whether the offender is a “serious danger to the community” (s163(3)) – considering various factors outlined in s163(4).
The prosecution has the onus of proof of demonstrating this danger to a standard of “high degree of probability” (s169-170).
Procedurally a “nominal Sentence” must also be declared at the time of ordering an indefinite sentence i.e. the sentence that the Court would have imposed if it did not order an indefinite sentence (s163(2)).
Court review of indefinite sentences:-
1.Within 6 months after serving 50% of nominal sentence or after 15-30 yrs of life sentences (s171(1)(a))
2.Subsequently, at intervals of <2 years from last review (s171(1)(b))
3.Possibly, upon application by offender, with leave (s172)
At the review the Court must discharge the Indefinite Sentence and sentence the offender for the original offence UNLESS satisfied that offender is still a “serious danger to the community” (s173).
Example Cases
R v Fraser [2004] QCA 92; R v D [2003] QCA 547; and R v Buckley [2006] HCA 7.
Proponents suggest these orders are necessary for community protection. But critics note flaws in predictions re recidivism, difficulties with proving dangerousness and possibility for error.
Under the Penalties and Sentences Act (Qld) 1992: An indefinite sentence continues until a court orders it is discharged (s162). The Court can impose an indefinite sentence on its own initiative or in response to a prosecution application (s163(1)). Such orders can only be made for qualifying offences, which means indictable offences listed in schedule 2, which include actual/counselled/attempted violence offences, such as manslaughter and armed robbery; or actual/counselled/attempted sex offences such as Unlawful Carnal Knowledge of a child under 12 yrs and Rape.
In making the order the court must determine whether the offender is a “serious danger to the community” (s163(3)) – considering various factors outlined in s163(4).
The prosecution has the onus of proof of demonstrating this danger to a standard of “high degree of probability” (s169-170).
Procedurally a “nominal Sentence” must also be declared at the time of ordering an indefinite sentence i.e. the sentence that the Court would have imposed if it did not order an indefinite sentence (s163(2)).
Court review of indefinite sentences:-
1.Within 6 months after serving 50% of nominal sentence or after 15-30 yrs of life sentences (s171(1)(a))
2.Subsequently, at intervals of <2 years from last review (s171(1)(b))
3.Possibly, upon application by offender, with leave (s172)
At the review the Court must discharge the Indefinite Sentence and sentence the offender for the original offence UNLESS satisfied that offender is still a “serious danger to the community” (s173).
Example Cases
R v Fraser [2004] QCA 92; R v D [2003] QCA 547; and R v Buckley [2006] HCA 7.