Victorian Sentencing Advisory Council Release Paper On Approach For Family Violence Offenders

Monday 27 February 2017 @ 11.24 a.m. | Crime

The Victorian Sentencing Advisory Council (“the Council”) has released a discussion paper on ‘swift, certain and fair approaches to sentencing family violence offenders’ as part of a review commissioned in 2016 by the Attorney-General.  The discussion paper is “intended to facilitate consultation on the key issues raised by the terms of reference” and will “assist in the development of the Council’s final advice to the Attorney General, due in August 2017.”  The Council is seeking submissions on the discussion paper before 31 March 2017.

The report examines so-called ‘swift, certain and fair’ (SCF) approach programs, which were originally developed in the United States.  According to a fact sheet issued with the discussion paper, these type of approaches:

“aim to increase an offender’s compliance with the conditions of their sentence (such as attending treatment or staying free of alcohol and drugs), and are based on the idea that offenders are more likely to comply with the conditions of their sentence if they believe that breaches will be discovered quickly and punished quickly, consistently and fairly. Increased compliance with conditions is believed to reduce the risk of reoffending.”

The Council lists ‘six key elements’ of SCF approaches as:

  • targeting offenders, under sentence in the community, who are subject to conditions;
  • identifying those conditions that receive non-discretionary (‘zero-tolerance’) responses upon contravention;
  • establishing a behavioural contract with the offender so that they know what is expected of them and what the consequence of non-compliance with a condition will be (usually a fixed sanction);
  • utilising measures to detect condition contraventions on a regular basis (such as regular drug testing);
  • responding to condition contraventions quickly by holding a contravention hearing within 72 hours of a detected contravention; and
  •  imposing fixed sanctions at a contravention hearing in accordance with the behavioural contract.

The discussion paper notes that there is mixed evidence for how effective these programs are.  A program called HOPE (Hawaii’s Opportunity Probation with Enforcement) has been successful, with probationers “72% less likely to have positive drug tests, 55% less likely to be rearrested, 53% less likely to have their probation revoked, and 61% less likely to miss appointments with their probation officers.”  However, an attempt to replicate this program across the United States was less successful, with the programs “found to be more resource intensive (in terms of both time and money) than the regular offender programs, without reducing reoffending rates or improving compliance with conditions.”

The Council also found that traditionally the SCF approaches are used in targeting drug and alcohol offenders rather than family violence offenders.  While the two groups may overlap significantly, and both groups may benefit from a therapeutic approach, the Council noted that for family violence offenders, protecting victims from future violence is a fundamental concern that may not be adequately addressed with the SCF approach.

The Council lists five possible options to implement aspects of SCF approaches for managing family violence offenders:

  1. Corrections-imposed ‘swift, certain and fair’ program: Corrections Victoria could identify high-risk family violence offenders on community correction orders and administratively place them in a ‘swift, certain and fair’ program.
  2. Court-imposed ‘swift, certain and fair’ program: The law could be changed to allow sentencing courts to identify high-risk family violence offenders sentenced to a community correction order and attach a condition requiring participation in a ‘swift, certain and fair’ program.
  3. Court-imposed ‘swift, certain and fair’ sentencing order: Similar to the drug treatment order, a new sentencing order could be created that allows courts to manage family violence offenders on a ‘swift, certain and fair’ program, and to activate brief periods of imprisonment if a condition is breached.
  4. Enhanced judicial monitoring: The law could be changed to allow, or require, increased use of judicial monitoring. The law could also be changed to expand court powers during a judicial monitoring hearing.
  5. Enhanced alcohol exclusion orders or conditions: Sentencing law could be changed to allow increased use of alcohol exclusion orders or conditions, or to broaden the scope of the alcohol exclusion to include any consumption.

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