Thanks to Judge Wayne Gorman who shared this interesting analysis:
The Sentencing Advisory Council for Victoria, on February 20, 2017, released a discussion paper entitled: Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (see https://www.sentencingcouncil.vic.gov.au/).
Following a recommendation by the Royal Commission into Family Violence, the Council was asked in September of 2016 to advise the Attorney-General on the desirability of implementing a “swift, certain and fair” approach to sentencing family violence offenders, and how such an approach might be implemented in Victoria.
The Royal Commission described the principles of “swift and certain” approaches to include:
-a clearly defined behavioural contract – that is, rules setting out the conditions of compliance and consequences of non-compliance in a way that is clearly understandable to an offender;
-consistent application of those rules;
-swift delivery of the consequences of non-compliance; and
-parsimonious use of punishment – that is, the least amount of punishment necessary to bring about the desired change.
The Council was also asked, in the event that the government introduces some form of “swift and certain” approach, to advise 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;
-the broad demand implications of any approach, or approaches, that the Council may consider desirable; and
-any other matter that the Council considers appropriate.
The new discussion paper forms the basis of the Council’s consultation and community engagement, and contains:
-a definition of what “swift, certain and fair” approaches are;
-a summary of the available evidence about the effectiveness of ‘swift, certain and fair’ approaches;
-an outline of the current frameworks for managing family violence offenders in Victoria; and
-a discussion of possible options for implementing a ‘swift, certain and fair’ approach in Victoria.
The discussion paper notes that for “the criminal justice system to be effective, it must respond to crime in a timely, consistent and fair manner. People who would otherwise engage in criminal behaviour are most effectively deterred when they perceive their chances of being caught as high, and when they believe that sanctions will be imposed sooner rather than later.”
Swift and certain prosecution of community correction order contraventions:
The discussion paper indicates that one option “for implementing an SCF [swift, certain and fair] approach in Victoria may be to change the way in which high-risk family violence offenders who have been sentenced to a community correction order (CCO) are responded to whenever they contravene the conditions of the CCO. In addition to fast-tracking CCO contravention prosecutions that involve family violence offenders, a reformed approach might involve legislative change. For example, when sentencing, a court might be allowed to prescribe CCO conditions that should be targeted with a ‘zero-tolerance’ approach to prosecution for contravention, thereby requiring particular (or indeed all) condition contraventions to be met with a swift and certain response.”
Alternatively, the discussion paper notes that “Corrections Victoria could implement a different (administrative) approach to the management of high-risk family violence offenders on a CCO, again requiring condition contraventions to be met with a swift and certain response.”