Is ‘swift and certain’ the right approach to family violence offenders?

Is ‘swift and certain’ the right approach to family violence offenders?

Monday, 8 May 2017

We have made a submission to the Sentencing Advisory Council on ‘swift and certain’ approaches to the sentencing of family violence offenders in response to a recommendation by the Royal Commission into Family Violence. The Attorney-General, the Hon. Martin Pakula MP asked the council for advice on the desirability of, and ways of ‘accommodating’ such approaches.

The council has released a discussion paper, Swift, Certain and Fair Approaches to the Sentencing of Family Violence Offenders, which raises issues particularly relevant to our summary crime practice prompting the council to invite us to make a submission.

Developed in the United States, ‘swift and certain’ approaches have primarily been used as a means of enforcing compliance with various drug and alcohol conditions by offenders under a sentence of probation. A key question for the council is the suitability of such programs for family violence offenders.

We believe that criminal justice responses to family violence should be embedded in the existing processes of the justice system and that the best way to keep victims safe in the long term and reduce the prevalence of family violence in the community is by addressing the causes of violence.

Criminal justice responses also need to look at the individual circumstances of criminal offending. For this reason, we support the maintenance of judicial discretion to deal with criminal offences committed in the context of family violence, including responses to breaches of sentencing orders. ‘Swift, certain and fair’ approaches limit judicial discretion, in that they essentially require the imposition of a fixed sanction.

We support measures to improve perpetrator accountability, and note that aspects of a ‘swift, certain and fair’ approach may be appropriate in some cases, however it will not be appropriate in all cases.

The system should allow for flexibility to ensure that the sentencing outcome in each matter promotes rehabilitation to the extent possible, reduces recidivism and contributes to a reduction in the prevalence of family violence in the community.

More information

Read our full Submission to Sentencing Advisory Council 'Swift, Certain and Fair Approaches to Sentencing Family Violenc​e Offenders' discussion paper – April 2017.