PROTECTIVE SENTENCING
The courts should be empowered, for the protection of others against serious harm by an offender, to sentence him to imprisonment for a specific period greater than that which would ordinarily be specified, but proportional to the seriousness of the anticipated harm and the court’s estimate of the duration of the risk.
Such would be labelled a protective sentence. The court must be satisfied, both in fairness and proportionality, by reason of the nature of the offence, the offender’s character, conduct and antecedents, that the offender is more likely to do further serious harm than other serious offenders. The court must first exclude that there is no sensible way of dealing with the offender which offers the necessary protection for the public. Then, and only then, may the court impose a protective sentence. An offender becomes eligible for a protective sentence only if he has done, attempted, threatened or conspired to do serious harm, as defined, and has committed an act of a similar kind on a separate occasion from the instant offence; the protective sentence should be available for a homicide offence, but only so long as the life sentence is available. An offender under the age of 18 at the time of the offence, or suffering from a mental disorder that qualifies for a hospital order under mental health legislation cannot receive a protective sentence; the mental patient can be so ordered if there is no hospital order available. A protective sentence should not be imposed without first giving the offender an opportunity to prepare his defence, together with full reports on the offender’s physical and mental health condition. In cases of the imposition of protective orders, the court must state its full reasons, and the order should be reviewable as of right, by the Court of Appeal.
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