‘Can get away with their crimes’: Why rapists keep being released from jail
Orders to keep some of Australia’s worst offenders in check after they’re released from prison have been breached hundreds of times in the past five years.
News
Don't miss out on the headlines from News. Followed categories will be added to My News.
Orders to keep one state’s worst offenders in check after they’re released from prison have been breached hundreds of times in the past five years – a signal, experts say, that they “can get away with their crimes”.
Data from the NSW Bureau of Crime Statistics and Research (BOSCAR) obtained by The Sydney Morning Herald this week found the state’s more than 100 high-risk offenders had breached extended supervision orders (ESO) 633 times between October 19 and September 2024. The orders are considered the toughest restrictions that can be imposed upon sexual, violence or terror-based offenders about to be released from behind bars. For an ESO to be implemented, the State of NSW must prove to the Supreme Court an offender poses significant “risk” to the community.
Among NSW’s repeat ESO breachers are convicted sex offenders Mark Sturgeon, who raped a 15-year-old girl in his car when he was 22 and will soon be released from jail under a new control order, and Graham James Kay.
Both ESOs and (less commonly) continuing detention orders (CDO) – under which an offender can be held in jail past the expiration of their sentence – “were introduced to precisely ensure that the community was protected from serious sex offenders and now also high-risk violent offenders”, Associate Professor at the University of Wollongong’s School of Law, Dr Julia Quilter, explained.
“It is exceptional legislation because it departs from our usual principles of criminal justice and sentencing and is protective legislation based on the risks a particular offender poses,” Dr Quilter, who is currently leading a number of projects on sexual assault law reform, told news.com.au.
Where an offender lives, who they can contact, conditions of their employment and whether they must undergo drug or alcohol treatment are among the roughly 40 conditions that accompany an ESO, Dr Quilter said.
“Some conditions may not from a community perspective pose any risk of safety to the community – instead, many may view them as part of effective rehabilitation,” she said.
“Others, of course, may be more serious breaches. Any breach, however, is a criminal offence and may lead to the person being re-incarcerated (even if for only a short period of time).”
Known as the North Shore Rapist, Kay served two decades in prison for a series of violent rapes in the late 1990s. He was released on his first ESO in 2018, which he breached by re-enacting his attacks with a sex worker and kissing a 16-year-old girl.
Kay went on to breach his second ESO in 2022, stalking and attacking a woman in Sydney’s CBD. After less than two years in prison, he was released on a third ESO last September.
Sturgeon, meanwhile, was released from jail with a five-year ESO in July 2019, which he had breached by July 2021.
In the years since, he has served time behind bars periodically for varied offences and will be interviewed by psychologists ahead of his prospective release from jail this year to guide the Supreme Court on what restrictions, if any, might mitigate his offending.
Rape and Sexual Assault Research and Advocacy (RASARA) CEO, Dr Rachael Burgin, said such breaches “show us again that the criminal justice system is not equipped to respond to sexual violence”.
“We need evidence-based interventions and actual accountability for people who use sexual violence,” Dr Burgin, a senior lecturer in criminal justice and criminology at Swinburne University, told news.com.au.
“We assume that tough restrictions will make us safer, but this just shows that might not be true. Prisons might punish an offender, but prisons aren’t working to protect the community or rehabilitate.”
“Rapists already know they can get away with their crimes,” Dr Burgin continued.
“Most of the time that is the message that the criminal justice system is sending. Most rapists aren’t charged. Most aren’t prosecuted. Most aren’t convicted.”
A BOSCAR study released in May 2024 found that in 2022, 9138 sexual assault incidents were reported to NSW Police – yet only 1016 resulted in a conviction. Similarly, according to Victoria’s Sentencing Advisory Council, of the 23,000 reports of rape to police between 2010 and 2019, there were only 1000 sentencings for offences.
And though the Australian Bureau of Statistics’ (ABS) most recent Personal Safety Survey (PSS) revealed that one in five Australian women over the age of 15 have experienced sexual violence in their lifetime, almost 90 per cent will not report their experience to police.
“For survivors of sexual violence, these repeated breaches are indicative that the criminal justice system can’t protect them,” Dr Burgin said.
“Determined offenders can’t be prevented from rape just by asking nicely. We need to invest in meaningful and rigorous programs for sexual offenders to change behaviour and to change the attitudes that drive sexual violence.”
Though the ESO scheme “is unlikely to be perfect”, Dr Quilter disagreed with the assertion the breaches were representative of the criminal justice system’s “failing” of sexual assault victim-survivors.
“I don’t see how this is failing victim-survivors when it is an exceptional measure designed to protect the community by providing a structure for person’s who continue to be a high risk to the community to be supervised, when otherwise they would simply be released into the community without any constraints,” she said.
“There may be a group of persons who persist in offending but that is a matter either for the general criminal law to address and/or there may be a point in time when a CDO could be applied for where the person is such a high risk.”
The question some judges have had to “grapple” with, Dr Quilter, is “when a person subject to an ESO breaches it (that amounting to a criminal offence) and they are re-incarcerated for the breach of a condition not because they have committed another serious or violent criminal offence”.
“In some cases this can lead to a person going in-and-out of jail for breaching the conditions of the ESO, disrupting any prospect of successful rehabilitation or meaningful reintegration in the community,” she said.
“This should be distinguished from a case where the person subject to an ESO commits a further serious criminal offence and should be dealt with under the criminal law.”
Originally published as ‘Can get away with their crimes’: Why rapists keep being released from jail
‘Gambling with WW3’: Zelensky speaks after Trump’s fiery takedown
Donald Trump has eviscerated the president of Ukraine after they clashed in a heated White House meeting, after which Volodymyr Zelensky apologised but not to the US leader.
‘Scared’: Town worried who’ll be next
The family of Daniel McNamara, who was killed in a hit-and-run allegedly committed by youth offenders, have slammed the justice system saying “criminals have more rights than victims.”