Australia
Australian Law Reform Commission (ALRC) (2017) Pathways to justice: Inquiry into the incarceration rate of Aboriginal and Torres Strait Islander Peoples.
See chapter 7 for discussion of community-based sentences.
7.3 Community-based sentences have some significant advantages over full-time imprisonment where the offender does not pose a demonstrated risk to the community. A community-based sentence offers a sentencing court ‘the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender.’ (references removed)
7.4 Despite the advantages of community-based sentences, Aboriginal and Torres Strait Islander peoples are less likely to receive a community-based sentence than non Indigenous offenders and, as a result, may be more likely to end up in prison for the same offence. In addition, even when Aboriginal and Torres Strait Islander people are given a community-based sentence, they may be more likely to breach the conditions of the community-based sentence and may end up in prison as a result (references removed).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response(ALRC Report 114) 2010.
This report presents a comprehensive review of legal responses to Family Violence in Australia. The commissions received many submissions. Chapter 12 discussed penalties and sentencing for breach of protection orders. The report notes that: ‘The overwhelming majority of stakeholders that addressed this issue were in favour of sanctions that could help to change the behaviour of those who commit violence. Therefore, there was support for ‘perpetrator programs’ such as violence and drug and alcohol rehabilitation programs; probation with special conditions, such as attending ‘perpetrators’ courses or counselling’; men’s behaviour programs; psychiatric assessment and treatment; anger management programs; and educational programs on family violence with ‘therapeutic interventions’’ (at [12.172].) Other options raised (as an alternative to imprisonment) included community service orders (provided the work associated with the penalty is ‘meaningful, constructive and rehabilitative’) (at [12.173])
Queensland Police Service, ‘The Domestic and Family Violence GPS-Enabled Electronic monitoring Technology, Evaluation Report, April 2019, Government of Queensland.
This report presents the findings of a trial of GPS tracking for family violence offenders and victims in Queensland. The trial assessed the effectiveness, reliability and responsiveness of GPS-enabled technology to track an individual accurately and activate an alert in the event of a pre-programmed zone being breached. The GPS-enabled technology was tested in different geographical areas and with police personnel rather than actual offenders and victims. Thirty-five tests were carried out, with the technology failing to respond in 26% of cases. The technical issues are discussed in more detail. Overall, the findings demonstrate that electronic monitoring does not provide an effective risk-mitigating solution for high-risk perpetrators and is not a reliable substitute for perpetrator case management. However, it may be of use in some lower-risk cases, in conjunction with other measures. This trial was a suggestion of the 2015 Queensland Special Taskforce on Domestic and Family Violence, which noted how little was known about electronic monitoring programs.
Sentencing Advisory Council (Vic), Sentencing Practices for Breach of Family violence Intervention Orders: Final Report (2009).
This report was compiled by the Sentencing Advisory Council Victoria and examines the penalties awarded for the breach of protection orders. The Council compiled the report by reviewing relevant literature on family data, analysing data on sentencing and conducting new research by consulting those involved in the sentencing process (magistrates, court staff, Victoria Police, community legal centre representatives, family violence service providers, defence lawyers, workers from men’s family violence programs and a family violence victims’ support group). The report made a number of comments around community based sentencing responses: (at 2)
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It observed that ‘sentences with more flexibility in terms of punishment (such as conditional orders that can incorporate community work and/or a financial condition), which are structured to ensure that it is the offender that must serve the punishment, may be more effective in achieving this sentencing purpose’
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It noted that ‘another sentencing purpose that can be compatible with protecting the victim (particularly in the long term) is rehabilitation. There will be occasions where a sentence with coercive rehabilitation requirements (such as mandatory attendance at a behavioural change course) as well as a punitive element (such as community work or a financial condition) strikes a better balance between the purposes of sentencing than a sentence such as a fine. Such sentences may achieve more in ensuring long-term compliance with the intervention order.
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It identified that the ‘central purpose [in sentencing] should be achieving compliance with the order to ensure the protection of the victim and the community. This is not to suggest that these offenders should always receive sentences of imprisonment. The Council would suggest that in some cases sanctions that intervene in the offender’s pattern of violent behaviour, such as community-based orders and intensive correction orders, may be more appropriate.’
Sentencing Advisory Council (Vic), Sentencing for Contravention of Family Violence Intervention Orders and Safety Notices: Second Monitoring Report (2015).
This report is a continuation of previous monitoring work, examining sentencing patterns over yearly periods from 2009 and 2015 for offences involving contravention of a family violence intervention order (FVIO) or a family violence safety notice (FVSN) made under the Family Violence Protection Act 2008 (Vic). In particular, this report examines sentencing for the offences of:
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contravention of an FVIO;
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contravention of an FVSN;
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contravention of an FVIO intending to cause harm or fear for safety;
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contravention of an FVSN intending to cause harm or fear for safety; and
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persistent contravention of notices and orders.
In terms of sentencing for FVIO and FVSN contravention, there was an increase in the use of imprisonment and community sentences (including community correction orders (CCOs), following the phased abolition of suspended sentences.
Trevena, J. and Poynton, S. (2016) ‘Does a prison sentence affect future domestic violence reoffending?’, Crime and Justice Bulletin 190.
Aim: To examine whether short prison sentences (up to 12 months) exert a deterrent effect for domestic-violence (DV) related offending.
Method: Propensity score matching was used to compare time to reoffence among 1,612 matched pairs of offenders, in which one of each pair received a prison sentence of 12 months or less and the other received a suspended sentence of two years or less. Kaplan-Meier survival analysis was then used to examine time to the first proven offence committed after the index court appearance.
Results: In the matched analysis, DV-related reoffending was not significantly different for people with suspended sentences and prison sentences. After 1 year, 20.3% of people given a suspended sentence and 20.3% of people given prison sentence had at least one new DV-related offence, and after 3 years the proportions were 34.2% and 32.3% respectively. These were not significantly different (HR 0.96, p=0.6).
Conclusion: Short prison sentences (up to 12 months) are no more effective in deterring DV-related reoffending than suspended sentences.
Trevena, Judy and Don Weatherburn (2015) ‘Does the first prison sentence reduce the risk of further offending?’, Crime and Justice (187)1.
This study examines whether short prison sentences (up to 12 months) exert a special deterrent effect (it does not specifically examine sentencing in family violence cases). Australian and international studies ‘have found little evidence that offenders given a prison sentence are any less likely to re-offend than comparable offenders given a non-custodial sanction. In fact, a prison sentence may increase the likelihood of re-offending, perhaps by providing opportunities to learn criminal behaviour and attitudes from others while in custody or because the stigma of being labelled reduces opportunities to pursue a non-criminal way of life on release’ (p. 1). ‘The main finding of this study is that, in a matched comparison between groups of offenders who got either a prison sentence or a suspended sentence, the subsequent time to reoffend did not depend on the type of sentence received. This suggests that there is no particular deterrent effect in receiving a prison sentence for people who had not previously been sentenced to prison, and is consistent with other findings (p. 11).
Trimboli, Lili, ‘Persons convicted of breaching Apprehended Domestic Violence Orders: their characteristics and penalties’ NSW Bureau of Crime and Statistics Research, Issue 102, January 2015.
This paper describes the characteristics of those found guilty of breaching an Apprehended Domestic Violence Order (ADVO) in NSW in 2013 and the principal penalties they received. Of 3,154 persons who were found guilty of breaching an ADVO as their principal offence n132 (4.2%) received a community based sentence with an average of 111 hours of work and n489 (15.5%) received a good behaviour bond with supervision (average time 16 months).(at 3)
International
Garner, Joel H., Maxwell. D. Christopher, and Lee, Jina, The Specific Deterrent Effects of Criminal Sanctions for Intimate Partner Violence: A Meta-Analysis, 111 J. Crim. L. & Criminology 227 (2020).
From abstract: …this research uses meta-analytic methods to assess the specific deterrent effects of three post-arrest criminal sanctions—prosecution, conviction, and incarceration—for one offense type—intimate partner violence. Based upon 57 studies that reported 237 tests of specific deterrence theory, the effects of sanctions varied: there is a marginal deterrent effect for prosecution, no effect for conviction, and a large escalation effect among incarcerated offenders. In addition, deterrent effects in the available research are stronger in tests that use more rigorous research designs, that measure repeat offending using victim interviews instead of official records, and that use new offenses against the same victim—not new arrests or new convictions against any victim—as the criteria for repeat offending.
Johnson, Richard, ‘Correlates of Re-arrest among Felony Domestic Violence Probationers’ (2008) 72(3) Federal Probation 42- 47.
This USA based study considers the factors associated with recidivism whilst on probation for a domestic violence offence. A sample of 273 domestic violence offenders in a suburban county in the Chicago metropolitan area was examined. Of the 273 offenders, 112 (41%) the following characteristics increased the likelihood of reoffending (p 45): young age, employment instability, residential instability, residing with the victim, substance abuse, prior criminal and violence convictions. Whether or not the offender had successfully completed a domestic batterer counselling program prior to his current sentencing was not significantly associated with re-arrest, (p 46). The strongest predictor for re-arrest was having a prior conviction for a drug and/or alcohol offence, this almost doubled an offender’s odds of re-arrest while on probation. The article concludes that taking into account the characteristics of an offender and tailoring a probation program on the likelihood of re-arrest could significantly increase the efficiency of legal responses to domestic violence (p 47).
Johnson, Richard, ‘Intensive Probation for Domestic Violence Offenders’ (2001) 65(3) Federal Probation 36-39.
This USA based study investigates a specialist Domestic Violence Program (the Domestic Violence Officer Program) set up in Kane County, Illinois (within the Chicago Metropolitan area). The program selected high-risk domestic violence offenders (classified as repeat or serious offenders) for specialised supervision (which included a 26-week domestic violence counselling program) as part of a sentence. The first 25 offenders placed in the program were monitored and compared to a control group of similar offenders and it was found that those who completed the domestic violence counselling program were less likely to be arrested for a new criminal or domestic violence offence in the 24 months after being sentenced to probation. The short term results of the program appeared promising, but note that the program was not probation alone but rather probation combined with heightened supervision and counselling. It is noted that the supervision of domestic violence offenders on probation can be difficult and sometimes dangerous.
Klein, Andrew et al. Evaluation of the Rhode Island Probation Specialized Domestic Violence Supervision Unit (2008) National Criminal Justice Reference Service.
This USA based study examines a specialised domestic violence probation supervision compared to standard probation supervision where supervision includes a mix of cases. It found several significant differences. The specialised domestic violence probation supervision program consists of a 26 week batterer intervention program, routine checks by a parole officer and a substantial percentage of offenders were ordered to have no contact with their victims. Few were required to undergo treatment for and/or remain abstinent from drugs and/or alcohol. The study is on 552 random male probationers drawn from nearly 3000 misdemeanour probationers in Rhode Island as of January 1, 2003.The study concluded that lower-risk abusers, constituting almost half of the probation abuser caseload supervised by the specialized unit, were significantly less likely to be rearrested for domestic violence and nondomestic violence crimes than were those supervised in the traditional mixed caseloads. Victims’ satisfaction appeared to be higher, and abusers were held more accountable (the authors make this statement based on the higher number of probationers charged with technical breaches that those in the mixed case group). The authors speculate on the reasons why this specialised approach to probation may have positive effects on recidivism.
A version of this report is also published as: Crowe, Ann and Andrew Klein, ‘Findings From and Outcome Examination of Rhode Island’s Specialised Domestic Violence Probation Supervision Program’ (2008) 14(2) Violence Against Women 226-246.
Klein, Andrew Practical Implications of Current Domestic Violence Research: For Law Enforcement, Prosecutors and Judges (National Institute of Justice, U.S. Department of justice Programs: 2009).
This is a comprehensive review of USA based research on issues relevant to domestic violence and law enforcement. The recommendations are made in the US context. Notes that a review of reported studies confirms that ‘the more intrusive sentences — including jail, work release, electronic monitoring and/or probation — significantly reduced rearrest for domestic violence as compared to the less intrusive sentences of fines or suspended sentences without probation. The difference was statistically significant: Rearrests were 23.3 percent for defendants with more intrusive dispositions and 66 percent for those with less intrusive dispositions’ (at p52).
Olson, David and Loretta Stalans, ‘Violent Offenders on Probation: Profile, Sentence, and Outcome Differences Among Domestic Violence and Other Violent Probationers’ (2001) 7(10) Violence Against Women 1164-1185.
This USA based research reports on the analysis of data collected from every adult probationer discharged from supervision during a 4-week period in November and December 1997 in Illinois. The information collected was grouped into three categories: probationer characteristics, conditions of the probation sentence and measures of case outcome. Data from 2438 offenders was obtained – 124 (5%) of those were domestic violence offenders. The authors report that domestic violence offenders were more likely to report a substance abuse history (though less likely to report alcohol abuse). However there were no other significant differences between domestic violence perpetrators and others. Because domestic violence offenders were primarily charged with lower level offences, the sentence length was significantly shorter (15.4 months v 22.4 months. Sentences for domestic violence offences had more conditions attached – the offenders were more likely to have to pay fines, attend programs, but less likely to be required to do community service. Domestic violence offenders were 3 times more likely to re-victimise the original victim, they were more likely to be contacted by probation officers. Those convicted and ordered probation were four times more likely to re-victimise. Those ordered to complete treatment were five times more likely to re-victimise (the authors speculate that this was possibly because these were more serious offenders).
Uekert, Brena et al., Juvenile Domestic and Family Violence: The Effects of Court-Based Intervention Programs on Recidivism (The National Centre for State Courts, 2006).
This is a USA based study on the effectiveness of court-based intervention programs (essentially probation with intensive supervision) for juvenile domestic and family violence perpetrators. The study involved three sites: Santa Clara, San Francisco and Contra Costa County. Agency and community-based staff were interviewed, court hearings were observed and agency protocols and reports were collected. Data on program completion showed among other things that: offenders with prior delinquency records were less likely to successfully complete probation and program requirements than were those without prior records; all things being equal- the likelihood of successfully completing the probation program increased if the offender did not violate probation, the offender was placed on electronic monitoring, the offender was not in Santa Clara County, and the offender was young. Primary findings from the study include the following:
The specialised intervention programs in both Santa Clara and San Francisco counties had a deterrent effect on first-time offenders. The deterrent effect, which lasted up to two years following the date of the incident, was especially apparent in Santa Clara County.
Ventura, L., and G. Davis. “Domestic Violence: Court Case Conviction and Recidivism”. (2005) 11(2) Violence Against Women 255-277.
This USA based study examined recidivism among a cohort of 519 cases. While fines and suspended sentences were found to be significantly associated with recidivism (p271), by comparison, of the 189 convicted batterers who received sanctions of jail time, work release sentence, electronic monitoring, or probation, only 44 (23.3%) were rearrested on domestic violence during the follow-up period (p272). The authors conclude in part: ‘that any deterrent value of conviction may be negated when the sanctions imposed are only suspended sentences or fines. Such sanctions may have little impact on the convicted batterer. The authors speculate that if a convicted batterer receives only a fine or a suspended jail sentence without probation, the offender has no specific rules or treatment requirements to complete to avoid incarceration.
While Australian state and territory sentencing legislation and case law vary in terminology and approach, there are sentencing options available in each jurisdiction that allow for suitable offenders who have committed offences involving domestic and family violence to be placed on orders requiring them to be supervised in the community and/or to abide by specific conditions. Such conditions may include performing community-based work, undertaking a rehabilitation program, or other conditions that ensure the offender complies with a current Family Court order or a protection order.
The Australian Law Reform Commission’s review of legal responses to domestic and family violence notes significant support from stakeholders for sanctions that are designed to help change the behaviour of violent offenders, including rehabilitation programs addressing the offending behaviour, drug and alcohol misuse, counselling and psychiatric needs, and other therapeutic interventions.
The Sentencing Advisory Council Victoria observes that multiple sanctions requiring community work and mandatory attendance at a behaviour change program may provide a constructive balance between punitive and coercive rehabilitation measures, while also ensuring the protection of the victim and community. They may also be more effective in achieving deterrence and long-term compliance with a protection order than a fine or term of imprisonment.
Australian research has found that short prison sentences (up to 12 months) are no more effective in deterring DV-related reoffending than suspended sentences. However, US studies have shown that while a suspended sentence or fine negated the deterrent value of a conviction, specialised domestic violence probation supervision programs for lower-risk offenders (with conditions similar to those already identified) resulted in significantly reduced recidivism rates, improved offender accountability and greater victim satisfaction with outcomes.
While Australian state and territory sentencing legislation and case law vary in terminology and approach, there are sentencing options available in each jurisdiction that allow for suitable offenders who have committed offences involving domestic and family violence to be placed on orders requiring them to be supervised in the community and/or to abide by specific conditions. Such conditions may include performing community-based work, undertaking a rehabilitation program, or other conditions that ensure the offender complies with a current Family Court order or a protection order.
The Australian Law Reform Commission’s review of legal responses to domestic and family violence notes significant support from stakeholders for sanctions that are designed to help change the behaviour of violent offenders, including rehabilitation programs addressing the offending behaviour, drug and alcohol misuse, counselling and psychiatric needs, and other therapeutic interventions.
The Sentencing Advisory Council Victoria observes that multiple sanctions requiring community work and mandatory attendance at a behaviour change program may provide a constructive balance between punitive and coercive rehabilitation measures, while also ensuring the protection of the victim and community. They may also be more effective in achieving deterrence and long-term compliance with a protection order than a fine or term of imprisonment.
Australian research has found that short prison sentences (up to 12 months) are no more effective in deterring DV-related reoffending than suspended sentences. However, US studies have shown that while a suspended sentence or fine negated the deterrent value of a conviction, specialised domestic violence probation supervision programs for lower-risk offenders (with conditions similar to those already identified) resulted in significantly reduced recidivism rates, improved offender accountability and greater victim satisfaction with outcomes.