Should Victoria introduce a swifter model of sentencing family violence offenders?

Offenders in Victoria, and elsewhere for that matter, often wait months or years between the date they commit a crime and the date a court sentences them. The delay is there for a reason; a number of important legal steps need to take place before someone is sentenced.

But the time lag can also diminish the effectiveness of the eventual punishment imposed on an offender. This is because deterrence to criminal behaviours is more effective when the would-be offender perceives their chances of being caught as high, and when they believe a sanction would be imposed sooner rather than later.

Fast responses from the criminal justice system are particularly important for family violence offenders, who are more likely to re-offend sooner than other offenders. They also usually re-offend with further family violence.

In May 2016, a report released by the Victorian Government’s Royal Commission into Family Violence recommended the Sentencing Advisory Council investigate a different approach to sentencing family violence offenders, specifically a “swift and certain” approach.

This approach is designed to encourage offenders, who are serving their sentence in the community, to comply with the conditions of their sentence. It does so by responding to non-compliance with fast, consistent and low-level sanctions.

What is a ‘swift, certain and fair’ approach?

“Swift, certain and fair” approaches are specific programs developed in the United States with a number of key features, including:

1. Targeting offenders serving a sentence in the community who are required to comply with certain conditions, such as being abstinent from drugs and alcohol

2. Identifying which conditions should receive zero-tolerance responses when an offender fails to comply

3. Holding a warning hearing to make sure offenders know what is expected of them and what the consequence of non-compliance will be

4. Using special measures to detect non-compliance on a regular basis, such as twice-weekly drug tests

5. Responding to non-compliance quickly, usually with a court holding a non-compliance hearing with 72 hours or so

6. Imposing fixed sanctions for non-compliance, in accordance with what they were told at the warning hearing. For example, in Hawaii’s HOPE probation program, an offender will typically receive two to three days in custody if they admit the violation, ten days if they deny it, and 30 days if they abscond.

The two most commonly discussed “swift, certain and fair” approaches in the United States have been Hawaii’s HOPE program – implemented in response to high rates of drug use and drug-related offending – and South Dakota’s 24/7 Sobriety Project – in response to high rates of alcohol use and drink-driving related offending.

Do these programs work?

In jurisdictions where a “swift, fair and certain” approach has been implemented, it has usually been in response to the perception current practices weren’t working. In Hawaii, for example, the HOPE program came about because offenders were seen to be breaching probation conditions several times before being brought back to court.

Evidence for the effectiveness of the “swift, certain and fair” approach is mixed. Initial research in 2007 and 2008 found probationers in Hawaii on HOPE were 72% less likely to have positive drug tests. They were 55% less likely to be arrest again, 53% less likely to have their probation revoked, and 61% less likely to miss appointments with their probation officers.

The same researchers found similar results in a follow-up evaluation in 2010–2014.

However, more recent research indicates Hawaii’s positive results may not be able to be replicated elsewhere.

That research investigated four HOPE-like programs in four US states and compared probationers on the program with probationers who weren’t on the program. The researchers found although HOPE-like programs were more resource-intensive (both in terms of time and money), they did not reduce re-offending rates or rates at which offenders breached the conditions of their probation.

What about family violence?

Traditionally “swift, certain and fair” approaches have been used to exclusively or primarily target drug and alcohol offenders. There is not currently any SCF program in operation, in Australia or elsewhere, that exclusively targets family violence offending.

Some SCF programs indirectly include family violence offenders in their cohort by, for example, targeting offenders with drug and alcohol issues. South Dakota’s alcohol-targeted program was found to reduce family violence arrests over a five-year period by nine per cent.

Victoria’s Drug Court, which also targets offenders with substance-abuse issues, has a similar model to a “swift, certain and fair” approach. But there are a few key differences.

First, Drug Court participants are required to attend regular court hearings, while participants in a SCF program usually only come back to court if they have been non-compliant.

Second, the Drug Court uses a system of accrued sanctions, such that if an offender’s accrued prison days, for example, exceed a week, the offender is required to serve that time in custody. Participants in a SCF program are immediately sanctioned for each and every violation.

Further, even if programs in other jurisdictions work well, there is no guarantee they can be transplanted into an entirely different context and be just as effective.

There are significant differences between American and Australian criminal justice systems. These include the relationship between correctional services and the courts, considerations of procedural fairness, and the unique history of mass incarceration in the United States.

The Council is inviting submissions on these and other questions outlined in the discussion paper by Friday, 31 March 2017.