Executive summary and recommendations Responding to family violence is a responsibility shared across government, the criminal justice system and the wider community. One part of the broader criminal justice response is the sentencing, and management under sentence, of family violence offenders. In March 2016, the Royal Commission into Family Violence recommended that the Sentencing Advisory Council (‘the Council’) examine one aspect of sentencing and managing family violence offenders, namely ‘the desirability of and methods for accommodating “swift and certain justice” approaches to family violence offenders in Victoria’s sentencing regime’ (Recommendation 83). Subsequently, in September 2016, the Attorney-General requested such advice from the Council in the form of terms of reference, and this report constitutes the Council’s response to those terms. Terms of reference The terms of reference ask the Council to examine the empirical evidence and provide advice on whether the criminal justice system response known as the ‘swift, certain and fair’ (SCF) approach is desirable in the sentencing and management under sentence of family violence offenders in Victoria. The Council has also been asked, in the event that the government introduces some form of ‘swift and certain’ approach, to provide advice on the following matters: which specific approaches are preferred within the Victorian context; whether there are particular groups of family violence offenders at which swift and certain approaches should be focused; whether modifications to current laws and sentencing practice and procedure are needed to support preferred swift and certain approaches; whether additional sentencing options are needed to support preferred swift and certain approaches;
risks cannot be justified on the current evidence. SCF approaches also raise a range of procedural fairness and human rights issues and have the potential to disproportionately affect particular groups in Victoria, including Aboriginal and Torres Strait Islander people. In addition, there are serious concerns about the capacity of the current criminal justice system to accommodate an SCF approach. In light of its research and consultation, the Council makes the following recommendation: Recommendation 1 There is insufficient evidence that a ‘swift, certain and fair’ approach to sentencing and sentence management of family violence offenders would be effective or appropriate in Victoria, and such an approach should not be implemented. New ‘family violence offender compliance order’ considered and dismissed The Council’s SCF discussion paper raised the possibility of a new sentencing order, the ‘family violence offender compliance order’. This order was to be directed at family violence offenders who would otherwise have served a term of imprisonment, and it would enable the possibility of short terms of imprisonment as a penalty for contravention of conditions of the order. The family violence offender compliance order was modelled on the drug treatment order and conceived as comprising two parts: a custodial component of relatively short length (for example, a period of up to three months) that would be unactivated, in a similar manner to the unactivated custodial component of the drug treatment order; and a community component with conditions based on the existing conditions of a CCO, including such conditions as requiring the offender to attend an MBCP and drug and/or alcohol treatment. The Council tested this proposal in consultation with a range of stakeholders. While some stakeholders were supportive of such an order for family violence offenders, the majority were not.
Recommendation 5 When sentencing a family violence offender to a community correction order, judicial officers should give particular consideration to attaching a judicial monitoring condition. Scheduling judicial monitoring hearings Currently, judicial monitoring hearing dates for a CCO are set by the court at the time of sentencing. A magistrate may, for example, set a judicial monitoring hearing date for three months following the commencement of a CCO. A number of stakeholders commented on the ineffectiveness of scheduling a judicial monitoring hearing many months after the commencement of a CCO, when offenders often struggle with compliance with their CCO in the first month. This is particularly the case for offenders released onto a CCO after an imprisonment sentence. Some stakeholders noted that, at this critical time, there is often little support. The Council is acutely aware of the risk to victim survivors when an offender is released from custody. Often, family violence offenders are released from custody to return to the home of the victim survivor. It is therefore critically important that family violence offenders are subject to a web of accountability so that they are supervised by Corrections Victoria and kept within the view of the court soon after release on a CCO. The Council’s Contravention of Community Correction Orders report found that the period immediately after a CCO commenced proved to be critical in terms of managing offenders’ risk of reoffending. Nearly half of offenders within the study group who contravened their CCO by further offending did so within the first three months of their CCO beginning (44%). Four per cent contravened their CCO with further offending in the first week, and 18% did so in the first month. Over nine out of 10 contraventions by further offending occurred within the first 12 months of commencement of the CCO (92%). Further, that report also notes that offenders sentenced to a CCO for breach of a family violence intervention order had a relatively higher rate of contravention
Corrections Victoria, in consultation with the courts, should develop and implement a protocol identifying the appropriate circumstances in which an offender would be directed by Corrections Victoria to attend a judicial monitoring hearing. Information to be provided at judicial monitoring hearings The Victorian Auditor-General’s report on Corrections Victoria’s management of offenders on CCOs raises a number of issues relating to the communication between Victoria Police and Corrections Victoria. This includes, for example, instances in which Victoria Police has failed to communicate information about offenders on CCOs to Corrections Victoria, leading to Corrections Victoria having an incomplete (and possibly inaccurate) appreciation of the offender’s risk level. Although Victoria Police and Corrections Victoria have a memorandum of understanding about sharing information for law enforcement and case management purposes, there are operational problems that restrict data sharing between the two agencies (see [2.24]–[2.26]). In some cases, important information about contact with offenders on CCOs is not communicated to Corrections Victoria staff members and therefore may not be brought to the court’s attention when the offender returns to court for a judicial monitoring hearing. It is important that, where possible, sufficient information is placed before the court, so that judicial officers conducting judicial monitoring hearings are not reliant on offenders self-reporting their compliance with CCO conditions or their progress on the CCO. The Council’s recommendation does not specify how such information should be obtained by Corrections Victoria, nor whether there should be particular amendments to Corrections Victoria’s protocols regarding contact with victim survivors or information sharing with service providers of programs such as MBCPs. The Council believes that Corrections Victoria is best placed to determine the most appropriate approaches to, and protocols for, obtaining relevant information to be provided to the court for a judicial monitoring hearing.
addition, a range of legislative amendments has led to increased pressures on judicial officers and court listings. An increase in the numbers of judicial monitoring conditions imposed will of course mean an increase in the number of judicial monitoring hearings. In order to support the increased use of judicial monitoring, there will need to be increased resources provided to courts, to meet the demand for expedited listings and the increased numbers of judicial monitoring hearings. The investment will need to apply to both the summary and the indictable streams of the courts. Several stakeholders noted that any amendments to sentencing family violence offenders would need to be supported by sufficient resource investment. For example, inTouch Multicultural Centre Against Family Violence observed that there are already existing shortages of interpreters, posing challenges for fast tracking matters involving culturally and linguistically diverse clients. This is also relevant to an increased use of judicial monitoring. Further funding of interpreting services will be necessary to support the increased use of judicial monitoring for culturally and linguistically diverse family violence offenders. Increasing the use of judicial monitoring will also have an effect on courts, requiring judicial officers to undertake a larger number of judicial monitoring hearings in addition to their regular caseload. The use of court-ordered Corrections Victoria directed judicial monitoring hearings may also contribute to an increase in the number of judicial monitoring hearings that will need to be listed within expedited timeframes. In addition to the courts, the following agencies and organisations will require additional resources to respond to an increase in the use of judicial monitoring: Corrections Victoria (who will need to appear at the judicial monitoring hearings); Victoria Legal Aid (who do not routinely provide offenders with representation at judicial monitoring hearings, but note that the