Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples
7.119 An approach to breach of community-based orders and parole which has had some success is a form known as ‘graduated’, ‘escalating’ or ‘swift, certain and fair’ (SCF) sanctions. Graduated sanctions have been adopted in relation to parole in NT and Queensland, and announced or trialled in relation to community-based orders in NSW and Victoria. The NSWLRC has previously recommended an approach to breach of parole modelled on the Queensland graduated system be adopted in NSW in order to promote responses to breaches that are ‘proportionate, swift and certain’.
7.120 Graduated sanctions may provide a more flexible and receptive range of responses than an ‘all or nothing’ approach to breach—and include measures such as:
additional reporting burdens, participating in programming, attending “day reporting” centers, short-term confinement in violation centers, and extending probation terms. In many cases, these reforms are designed to intervene earlier in a supervisee’s history of violations, providing a mild sanction immediately following the violation rather than the pattern of ignoring a series of violations and then filing for revocation. Research suggests that such alternative sanctions can be just as effective in reducing future violations as jail terms, while ameliorating jail “churning” and easing local budgets … 7.121 A United States based community-based sentence that received positive attention and evaluation is the Hawaiian Opportunity Probation Enforcement (HOPE) Program—a specialist court program that specifically focuses on offending related to drug and alcohol dependency. 7.122 HOPE relies on ‘swift and certain, but modest, sanctions to improve compliance’ with participants warned at the outset that each time they violate HOPE rules they will be immediately met with an escalating custodial sanction.  Sanctions range from a few hours in a cell-block to up to 30 days of imprisonment—with U.S. research finding that swiftness and certainty of punishment has a larger deterrent effect than increased severity. 7.123 A randomised control trial evaluation of HOPE found that participants spent 48% fewer days in prison, were less likely to be arrested for a new crime, less likely to test positive for drugs, and less likely to have their probation revoked. 7.124 In relation to Australian implementation of a HOPE-style program in Australia, Association Professor Bartels considered that:
The implications for Indigenous offenders would also need to be considered carefully, although the program may have the potential to reduce their over-representation in custody … Any pilot program that includes a significant number of Indigenous offenders should be developed in consultation with relevant community representatives. 7.125 The Victorian Sentencing Advisory Council’s report, Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders, was released in October 2017. In that report, the Sentencing Council recommended against the introduction of a HOPE-style scheme of ‘swift, certain and fair’ sanctions specifically in the context of family violence offending. Nevertheless, the Sentencing Advisory Council did note broad stakeholder support for greater use of—and flexibility in relation to—judicial monitoring as a condition of a CCO for family violence offenders, and made several recommendations to that effect. 7.126 The ALRC notes that research has found that ‘[r]ecent efforts to replicate the HOPE program in other jurisdictions have not been successful’. Judge Alm, the key judicial officer in the original HOPE program, suggested that efforts to expand the program have failed because ‘replicators did not include the efforts to materially support probationers and instead took a punitive “sanctions only” approach’. 7.127 Associate Professor Bartels also noted that:
the court’s swift, certain and proportionate sanctions model, told only part of the story. The program also featured many aspects of drug courts and adopted the principles of therapeutic jurisprudence. Significantly, the judge provided extensive encouragement, praise and support to participants … In light of this, the program model may hold significant promise for Aboriginal and Torres Strait Islander populations if it is implemented as intended, that is, as a therapeutic program that supports and encourages participants.