A LEGAL expert in sentencing told the fourth Round Hall criminal law conference that the sentencing of recidivists in sexual crime was one of the most intractable issues facing the courts.
Barrister Tom O’Malley said courts operated on the basis of proportionality, that is, sentencing for the gravity of the crime. This meant there were difficulties about sentencing repeat offenders for crimes that had been punished or possible future crimes – a “likelihood to reoffend” – which could amount to preventive detention.
“How do we identify who is likely to be a recidivist?” he asked.
They could be people who committed numerous sexual offences before being caught and prosecuted; people who had been prosecuted for crimes committed some time ago and who then faced fresh charges for similar crimes during the same period, and those who were convicted and sentenced and who committed fresh crimes after they were released.
There was conflicting evidence about the likelihood of sexual offenders reoffending, he said, depending on the type of sex offender, the post-release period examined, the nature of the offence taken into consideration and who was doing the research.
A wide-ranging Canadian study showed the longer the period since release, the higher the likelihood of reoffending. Those most likely to reoffend were abusers of male children, followed by rapists, while those who committed incest were least likely.
There was also conflicting evidence about the treatment of sex offenders, with one of the most significant recent studies showing a 37 per cent reduction in recidivism for those who participated in a treatment programme.
In our system, the lack of previous convictions was a mitigating factor in sentencing. Therefore the best approach, Mr O’Malley said, was the progressive loss of mitigation for repeat offenders.