A swift, certain and fair approach is a specific type of criminal justice program developed in the US. It usually targets offenders who are serving their sentence in the community, and requires criminal justice agencies to respond quickly to any non-compliance with fixed sanctions. This is usually a couple of days in custody.
These approaches have been received and adopted in some jurisdictions with great enthusiasm. However, that enthusiasm may not be backed by evidence.
What did the council find?
Victoria’s Royal Commission into Family Violence recommended that the Sentencing Advisory Council report on the desirability of swift, certain and fair approaches to sentencing and managing family violence offenders. The council found overwhelming opposition to the idea, for several reasons.
First, the evidence in relation to the effectiveness of such programs is uncertain. There is both positive and negative evidence about whether they can work well with offenders who have substance abuse issues. And there is no direct evidence that they are effective for family violence offenders.
In addition to these programs being untested for family violence offenders, they are also untested in Australia. There is currently a similar program being piloted in the Northern Territory. However, that program has more of a rehabilitative focus: participants are required to spend three months in a residential rehabilitation facility before starting on the program.
The second reason the council has recommended against a swift, certain and fair approach is that there is a risk it could increase, rather than decrease, the risk to victim-survivors of family violence.
In particular, there is a risk that a family violence offender could blame the victim if they had to spend a few days in custody, especially if it was the victim who had brought the breaching behaviour to the attention of criminal justice officials.
Third, both Victoria Police and Corrections Victoria have emphasised that in the current system there would be little-to-no capacity to hold family violence offenders in custody for short stints.
Fourth, swift, certain and fair approaches in general were considered incompatible with the right to procedural fairness.
In programs elsewhere, offenders serve their time in custody before the breach hearing is brought before a judge (to ensure the response is swift). But defendants in Victoria have a right to prepare a defence before being placed in custody. A swift, certain and fair approach would not give them that opportunity.
Finally, the council was concerned about the possibility that a swift, certain and fair approach would have a disproportionate effect on disadvantaged groups in society.
In particular, there was a risk it could negatively affect:
low-risk offenders, by interfering with positive factors such as their employment and education;
Indigenous offenders, for whom short periods of custody may pose a more acute risk;
female offenders, who are more likely to have primary carer responsibilities; and
offenders with cognitive disabilities, who may have difficulties understanding and meeting the demands of certain conditions.
The Sentencing Advisory Council made several alternative recommendations that would better achieve the broader principles of swiftness, certainty and fairness.
First, in 2015, the Magistrates’ Court of Victoria started fast-tracking criminal proceedings against family violence offenders, so that their case would be heard within a few months. Generally, this fast-tracking does not extend to family violence offenders who breached the conditions of their community correction orders.
Noting that the Dandenong Magistrates’ Court is already trialling the fast-tracking of breach offences of such orders, the council has recommended these breach offences be fast-tracked alongside other family violence offences.
Second, although traditionally the judge or magistrate’s role ends after the sentencing hearing, there is growing evidence that the judiciary might be an untapped resource in managing family violence offenders in the community.
Research suggests that if the sentencing magistrate stays involved in the management of that offender in the community, offenders are more likely to comply with the conditions of their sentence and less likely to reoffend.
This supervision not only makes the offender feel accountable because the eyes of the court are on them, but also that they are being treated fairly because they are seeing the same magistrate or judge each time. Offenders who feel like they are being treated fairly are, in turn, more likely to comply with the conditions placed on them.
The council has therefore recommended increasing the judicial monitoring of family violence offenders.
As part of that recommendation, the Council has suggested that corrections officers should be able to send an offender to a judicial monitoring hearing if they think there is an increase in the risk of family violence.
For example, an offender’s risk level might have increased if divorce or custody proceedings have started, or if the corrections officer has received concerning information about the offender from a men’s behaviour change program.
Finally, the council has recommended that the increased use of judicial monitoring should be supported by sufficient resources, training, and evaluation.
The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.