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Director of Public Prosecutions

25. Dangerous Criminals High Risk Offenders Act 2021

25.1 Introduction

The Dangerous Criminals and High Risk Offenders Act 2021 was proclaimed on 13 December 2021 with the aim of providing protection to the community from persons who have committed offences involving violence, or an element of violence. The Act provides the legislative basis for declarations and orders relating to dangerous criminals (Part 2) and high risk offenders (Part 3).

25.2 Dangerous criminal declaration

Section 4 of the Act provides:

(1) An application may be made by the DPP to the Supreme Court for an offender who is convicted of a crime, involving violence or an element of violence, that is specified in the application, to be declared to be a dangerous criminal.

(2) An application under subsection (1) in relation to an offender who is convicted of a crime specified in the application may be made at any of the following times:

  • (a) when the offender is convicted of the crime;
  • (b) when the offender is sentenced for the crime;
  • (c) when the offender is serving –
    • (i) a custodial sentence for the crime (whether or not the sentence is being served concurrently with, or cumulatively on, another custodial sentence for another crime or offence); or
    • (ii) a custodial sentence being served cumulatively on a custodial sentence for the crime to which subparagraph (i) applies (whether or not the sentence is being served concurrently with, or cumulatively on, another custodial sentence for another crime or offence).

A crime involving violence includes a crime of a sexual nature (see R v Evans [1999] TASSC 25).

Following the making of a dangerous criminal declaration the offender is to remain in custody until that declaration is discharged.

Dangerous criminal declarations provide for the indeterminate sentencing of an offender, which is contrary to the fundamental principle of proportionality. That principle precludes the increase of a sentence beyond what is proportionate to the crime merely for the purpose of extending the protection to society from the recidivism of the offender.

An application should only be made in exceptional circumstances where, upon cogent evidence, the court could be clearly satisfied that a person presents a constant danger of physical harm to the community (see Chester v R (1988) 165 CLR 611).

In determining whether the offender is a serious danger to the community, the Supreme Court must consider the following:

  • whether the nature and circumstances of each offence, involving violence or an element of violence, for which the offender has been convicted are such as to warrant the indefinite detention of the offender
  • the offender’s antecedents, age and character
  • the need to protect the community from the offender
  • each report, in relation to the offender, that is before the court, including any report by a psychiatrist, psychologist or medical practitioner or under the Corrections Act 1997
  • the risk of the offender being a serious danger to the community if the offender is not imprisoned
  • any other matters that the court considers relevant

A declaration is not made merely to protect the community because there is some uncertainty about the likelihood of the offender committing a crime (see DPP v McIntosh [2013] TASSC 21). However, certainty that the offender will commit a serious crime is not required before a declaration is made. In Read v R (1994) 3 Tas R 387, the Court of Criminal Appeal said:

What the court is required to do is assess the risk posed to the community by the offender being at large. This in turn depends upon the likelihood of his committing further violent offences. This is something which must be judged taking into account all relevant circumstances, including the offender’s propensity to commit such offences in the past. If the type of offences in contemplation are of a grave character and if there is a real likelihood that the offender will commit one or more of such offences if and when discharged from gaol, the court may make the appropriate declaration.

Where a prosecutor is of the view that an application for a dangerous criminal declaration should be made, approval is first required from the Director.

In order to pursue an application, it will be necessary for a psychiatric report to be obtained addressing the risk of the offender being a serious danger to the community. Where this has not been obtained prior to the application being made, the court may order that one be prepared (s5).

Where a declaration is made under the Act, the Director of Public Prosecutions must make an application to review the declaration within 12 months before the day by which all relevant custodial sentences have expired. Further reviews must also be sought within three years of the most recent determination refusing to discharge the order.

Where a declaration was made under a previous Act, an application to review the order must be made within three years of the commencement of the Act.

25.3 High risk offender order

The Director of Public Prosecutions may apply to the Supreme Court for a high risk offender order (HRO order) in relation to relevant offenders up to 9 months prior to the expiration of their sentence (s33). HRO orders can be sought against relevant offenders. Relevant offenders are defined in s24 and mean an offender who has been convicted of a serious offence, who has attained the age of 18 years and who is:

(a) in custody –

  • (i) pursuant to a dangerous criminal declaration; or
  • (ii) in accordance with an interim HRO order; or
  • (iii) in accordance with an order discharging a dangerous criminal declaration, but pending the determination of a HRO order; o

(b) subject to a HRO order or an interim HRO order; or

(c) serving a custodial sentence –

  • (i) for a serious offence; or
  • (ii) for the offence of breaching a HRO or interim HRO; or
  • (iii) for an offence, against a law of another State, a Territory or the Commonwealth, that is being served concurrently with or cumulatively on, or partly concurrently with and partly cumulatively on, one or more sentences of imprisonment referred to in subparagraph (i) or (ii).

Crimes amounting to serious offences are listed in Schedule 1 of the Act and include penetrative sexual abuse of a child, persistent sexual abuse of a child, murder, manslaughter, committing an unlawful act intended to cause bodily harm, persistent family violence, rape and aggravated armed robbery.

An application for a HRO order will only be made where there is cogent evidence to satisfy the court, to a high degree of probability, that the offender poses an unacceptable risk of committing a further serious offence unless the HRO order is made (s36(2)).

High degree of probability constitutes a standard of proof which is higher than the civil standard of balance of probabilities but lower than the criminal standard of beyond reasonable doubt (see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]).

In determining whether the offender poses an unacceptable risk, the court need not be satisfied that it is more likely than not that an offender will commit a serious offence (s35(3)). The assessment of risk is an evaluative task, to be undertaken in the context of making the community safe from harm (see Lynn v New South Wales [2016] NSWCA 57).

In determining whether to pursue an application, the Director of Public Prosecutions will give consideration to the following matters:

  • The circumstances of the offending giving rise to the serious offence, including any comments made by the offender
  • The comments on passing sentence relating to the serious offence, particularly as they relate to risk of further offending and/or prospects of rehabilitation
  • The circumstances and history of the offender, including their antecedents and any patterns of offending that may be indicated by that history
  • The behavioural and management reports prepared pursuant to s27
  • The risk assessment report prepared pursuant to s29
  • Any known or apparent risk factors, including any steps taken to address them

Where counsel identify a potentially suitable HRO candidate at the time of sentence, that information should be conveyed to the HRO prosecutors for consideration at the appropriate time.

Any application for a HRO order must be approved by the Director.

Last updated: 10 July 2026

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