Therapeutic jurisprudence and restorative justice for family violence: expanding the options for responding effectively to violence and other abuse

Alikki Vernon[1], David Moore[2] & Russell Jeffrey[3]

[1] Dr Alikki Vernon, Consultant & Vice President, Victorian Association for Restorative Justice

[2] Dr David Moore, consultant & President, Victorian Association for Restorative Justice

[3] Russell Jeffrey, Manager, Community Conferencing, Neighbourhood Justice Centre & Secretary, Victorian Association for Restorative Justice

The social movement for “restorative practices” in Australia has recently aligned with (i) efforts to deal with abuse in institutional settings and (ii) efforts to address family violence.

For example, the restorative engagement program within the recently concluded Australian Defence Abuse Response Taskforce provided an effective response to the harm caused by workplace discrimination, harassment and bullying, physical abuse &/or sexual assault in an institutional setting.  Lessons from this pioneering work are now being adopted din a national redress scheme.

In a parallel development, the Victorian Family Violence Royal Commission (VFVRC) in 2016 recommended the development a framework and pilot program to deliver restorative options for victims of family violence [Recommendation 122] and to assist young people and families in situations where adolescents are using violence in the home [Recommendation 128].  When used appropriately within well-designed programs, the group conferencing process can support systemic improvements to Victoria’s response to family violence.

Members of the Committee of the Victorian Association for Restorative Justice (VARJ) will describe current innovations using restorative practices to manage cases of family violence, including where court sentencing has been deferred and a case referred to group conferencing.  The presenters will also explain how pilot programs that provide family-systems interventions to address adolescent family violence in the home are being officially coordinated with Victoria’s youth justice group conferencing program.

These emerging practices represent a combination of therapeutic jurisprudence and restorative justice – consistent with 2010 amendments to Victoria’s Sentencing Act.  There are important lessons from these experiences about what might be required in the way of policy development, program management, and the training and mentoring not only of specialist group conference facilitators, but of other professionals involved in the administration of justice.

Biography:

David B. Moore is a Melbourne-based consultant specialising in conflict management and constructive communication across the government-, corporate-, and community sectors.  He is also Principal Consultant to Sydney-based Prime Change Consulting.  David has trained facilitators nationally and internationally, taught at multiple universities in history, politics and law, and published widely on conflict management, change management, and organisational governance. He has recently been special advisor to the Defence Abuse Response Taskforce, work that is now continuing with the Commonwealth Ombudsman and national redress schemes.  David is the current President of the Victorian Association for Restorative justice.

Alikki Vernon has worked as an independent consultant in dispute resolution and restorative practices for over 20 years. Her professional practice includes managing workplace conflict, improving the governance of community and government organisations, supporting mental health case management, identifying effective responses to institutional abuse and family violence,.   Alikki also coordinated the program of dispute resolution at La Trobe University School of Law for a decade.  She is Vice President of the Victorian Association for Restorative Practices.

Russell Jeffrey is currently the Manager of Community Conferencing, Collingwood Neighbourhood Justice Centre (NJC).  Russell qualified and practiced several trades before qualifying as a social worker, and working in both Scotland and Australia.  He was a youth justice group conferencing facilitator with Jesuit Social Services before becoming the state-wide manager, with the Department of Health and Human Services, of Victoria’s youth justice group conferencing program.  He accepted the full-time position of Manager of Community Conferencing at the NJC in 2016 after the success of an earlier secondment.

 

Examining Magistrate Perceptions and Use of Judicial Supervision

Magistrate Pauline Spencer1, Dr Benjamin Spivak2, Professor James Ogloff3, Dr Stephane Shepherd, Dr Diane Sivasubramaniam

1 Dandenong Magistrate’s Court, Dandenong, Victoria, 3175

2 Centre for Forensic Behavioural Sciences, Swinburne University of Technology and Forensicare, 505 Hoddle Street, Clifton Hill, 3068, bspivak@swin.edu.au

3 Centre for Forensic Behavioural Sciences, Swinburne University of Technology and Forensicare, 505 Hoddle Street, Clifton Hill, 3068, jogloff@swin.edu.au

Victorian sentencing law offers a number of mechanisms for magistrates to engage in therapeutic practices when dealing with offenders including deferral of sentences and judicial monitoring as part of a Community Corrections Order. Judicial monitoring allows for an accused/offender to appear before the same magistrate on multiple occasions to encourage and monitor engagement in rehabilitation programs. Supporters suggest that judicial supervision supports the aims of rehabilitation and treatment by motivating behavioural change, keeping offenders accountable, and allowing magistrates to tailor sentencing to an offender’s changing situation.

While Victoria permits judicial supervision, the relevant law allows for extensive magisterial discretion in determining when the mechanism should be used (i.e. what are the characteristics of accused/offenders that are best targeted for judicial supervision), how it should be employed in practice, what techniques should be used in supervision hearings, how often review hearings take place, and what specific goals supervision should be aiming to meet. Furthermore, these aspects of judicial supervision have largely been ignored by researchers meaning that there is a lack of information concerning how supervision is utilised and perceived by magistrates and whether magistrates face any barriers in employing judicial supervision in particular circumstances.

In 2016, the Centre for Forensic Behavioural Sciences was awarded a Victorian Legal Services Board grant to undertake a research project aimed at addressing the lack of information around magistrates’ use and perceptions of judicial supervision. The research seeks to examine who is being targeted by judicial supervision and why, what types of supervision are being used (e.g. pre-plea, post plea, post sentence), what, if any, barriers to judicial supervision are perceived by magistrates, and what techniques are being used by magistrates in court review hearings when undertaking supervision.

This paper will outline the background to the project, the methodologies utilised and the anticipated outcomes of the study.

Biography:

Magistrate Pauline Spencer sits at Dandenong Magistrates’ Court, Victoria, Australia.  She was appointed to the bench in 2006.  Prior to her appointment she worked as a private lawyer and then with community legal centres as a lawyer and in a policy role.  During this time she worked with people with addictions and wrote and spoke about the need for the justice system to find better ways of dealing with people who were committing offences as a result of addiction.  Since being appointed Magistrate Spencer has developed her interest in therapeutic jurisprudence and in particular its application in busy mainstream court setting.

Dr Benjamin Spivak is a Research Fellow at the Centre for Forensic Behavioural Science, Swinburne University of Technology. His research interests relate to legal decision-making and risk assessment.

Judicial monitoring – panel discussion.

Deputy Chief Magistrate Jelena Popovic1,

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  jp@magistratescourt.vic.gov.au

Judicial monitoring is a key feature of many therapeutic jurisprudence (TJ) initiatives.  It involves active oversight of a case by a judicial officer, usually including multiple court appearances of an accused person or offender before the same judicial officer.

The Magistrates’ Court of Victoria (MCV) operates a range of specialist courts and lists. It also utilises the Court Integrated Services Program (CISP) in mainstream court. Magistrates also now have the option of judicially monitoring offenders sentenced to a community corrections order.

Led by Deputy Chief Magistrate Jelena Popovic, this presentation by a panel of Victorian magistrates who sit in specialist court lists will discuss the different forms of judicial monitoring that are practiced in Victoria.

Biography:

Jelena is a Victorian Deputy Chief Magistrate of 27 years standing who has a keen interest in solution focussed judging and is the Supervising Magistrate of the Koori Courts.

The Court Integrated Services Program (CISP) – characteristics of successful program completion.

Glen Hardy1, Glenn Rutter2

1 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glen.Hardy@courts.vic.gov.au

2 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glenn.Rutter@courts.vic.gov.au

The Court Integrated Services Program (CISP) is a court-based support program operating in the Magistrates’ Court of Victoria which addresses issues underlying offending behaviour. It works with accused persons who are on bail, summons or remand pending a bail hearing, and have health or social needs that contribute to their offending such as drug and alcohol addiction, homelessness, disability, mental health or social and cultural isolation. The program provides short-term case management (up to four months) and referral for therapeutic interventions to assist participants to address their needs prior to sentencing. CISP case managers provide regular feedback to magistrates on the progress of each participant. This monitoring ensures that participants are “kept in view” by the court, with the aim of improving community safety. The CISP is a flexible model which has the capacity to respond quickly to changes in the population of accused who are appearing before the court. Recently, this has seen the program adapt to the challenges posed by the increased number of participants using crystal methylamphetamine (Ice) and also the increasing rates of family violence. Now in its 10th year of operation, the CISP operates at 12 court locations and supports approximately 2000 participants per year, with plans to expand the program to additional locations in the near future.

In 2016 the CISP was a gold award winner in the community-led category of the Australian Crime and Violence Prevention Awards.

Drawing on ten years of data this paper will examine indicators for successful completion and non-completion of the program and compare the characteristics of those who offend/reoffend post program completion.

 

The TJ Journey Continues: Reflecting on the Therapeutic Jurisdiction in Tasmania.

Liz Moore1, Magistrate Glenn Hay2

1 Court Mandated Diversion, P O Box 4660, Bathurst Street PO, Hobart, Tasmania, 7001. 

2 Hobart Magistrates’ Court, 23-25 Liverpool Street, Hobart, Tasmania, 7000.

This presentation will provide an update on the journey of the therapeutic jurisdictions in Tasmania, including Court Mandated Diversion (the Drug Court), the Mental Health Diversion List and the Youth Court.  Exciting new developments in relation to extending CMD to the Supreme Court and enabling alcohol related offences to be included in Drug Treatment Orders will be discussed, including implications for the possible development of a Drink Driving Court.  Implications for theory and practice will be raised, along with critical reflection on how the Tasmanian courts have addressed the particular challenges of implementing TJ.  The presentation will include photographs of the various therapeutic courts in action.

Biography:

Liz Moore
Liz (MA, LLB) has case managed within Corrective Services for 26 years, in Risdon Prison, Community Corrections and CMD (the Drug Court). She completed a Master of Criminology and Corrections in 2012, focussing on the impact of drug courts around the world and demonstrating their effectiveness in reducing offending and achieving cost savings. Liz has visited drug courts and related programs in 20 jurisdictions around the world, has published in this field, and her work has achieved state and national practice awards. Liz is committed to the practical application of research to improve the effectiveness of programs and to reform the criminal justice system generally. She was responsible for coordinating government and NGOs to establish the original Visitors Centre at Risdon Prison after working in family visiting projects in UK prisons, and is now directing her energy towards developing the therapeutic jurisdiction in Tasmania.

Glenn Hay
Glenn (LLB) has had a long and diverse legal career since he was admitted to the Bar in 1976. He spent 23 years in private practice, specialising in the separate representation of children in Family Law. His numerous legal appointments have included SES Registrar of the Family Court of Australia, member of the Tasmanian Sex Discrimination Tribunal, member and Chair of the Anti-Discrimination Tribunal and Director of the Centre for Legal Studies. He has been a Magistrate for ten years and conducts specialist lists to oversee the Court Mandated Drug Diversion Program, the Forensic Mental Health List and a Family Violence list. He enjoys sailing and rowing and ensures the viability of several Australian airlines with numerous visits to Sydney each year to enjoy spending time with his children and grandchildren.

Let’s Talk About Compassion as the Foundation of a Solution Focus in Sentencing.

Dr Anthony Hopkins1

1Australian National University, Acton, Australia

At heart, adopting a solution focus in sentencing involves understanding the lived experiences of those who come before the court and using this understanding as a platform to promote positive change. It requires engaging with participants as human beings entitled to equal respect and equal consideration. And this requires paying particular attention to each participant’s individual struggle and working actively to empower them to realise their potential. So described, adopting a solution focus is congruent with both ‘equality before the law’ and an ‘ethic of care’ (King, 2010). Indeed, it is argued that these as complementary and interdependent values. But what motivates and supports the pursuit of these values in solution focused sentencing processes? Utility – understood as ‘what works’ – is key. So too is principle, and the rectitude of promoting equality as an end in itself. Yet to stop here is to miss the deeper foundation that underlies the pursuit of solutions in sentencing. That foundation is compassion: ‘the capacity to be open to the reality of suffering and to aspire to its healing’ (Feldman and Kuken, 2011). It is compassion that ‘enables us to be motivated to engage with suffering, to stay with it and understand its causes in a non-judgement way’, and it is compassion that ‘enables us skilfully to work toward the alleviation and prevention of suffering and its causes’ (Gilbert and Choden 2014).  If it is accepted that a foundation of compassion best enables the pursuit of solutions in sentencing, there is much to be gained from naming compassion as a key attribute of professionals involved in the work of solution focused courts and supporting them to further cultivate a compassionate mind.

Biography:

Anthony Hopkins is a criminal defence barrister in the ACT and a Senior Lecturer at the ANU College of Law. He began his career as a lawyer working at the Central Australian Aboriginal Legal Aid Service in Alice Springs. Anthony’s teaching and research interests include a focus on why it is essential that particular attention be paid to the historical and contemporary experience of Indigenous Australians at all stages of the criminal justice process. He has a personal and professional commitment to holistic approaches to rehabilitation and personal change, born, in part, from his continuing Vipassana meditation practise.

 

Offenders: A framework for managing risk and meeting needs

Dr Astrid Birgden1

1Consultant Forensic Psychologist, Just Forensic, Melbourne, Australia, 2Adjunct Clinical Associate Professor, Melbourne, Australia

Offenders have human rights. Therefore offenders are both rights-violators and rights-holders requiring legal actors as duty-bearers to balance managing offender risk with meeting offender need. From a therapeutic jurisprudence perspective, offender rights can be met through the law, correctional procedures, and the role of correctional staff as legal actors. In terms of the law, human rights are prescribed in various UN instruments but prisoners are rarely mentioned and both US and Australian courts have had a “hands-off” approach to prison administration. In terms of procedures, correctional staff are to adhere to the (outmoded) Standard Guidelines for Corrections in Australia 2004 but the stated goals are to be strived for rather than enforced.  In terms of roles, the message regarding the community-offender balance is subsequently confusing for correctional staff.

Dr Birgden will propose a framework that balances offender risks and needs using examples in policy development and service delivery in the correctional and forensic disability systems. The framework proposes a model that addresses both habilitation (in meeting needs) and rehabilitation (in managing risk). The framework proposes a set of guiding principles and practical strategies for assessing, treating, and managing offenders to enhance community reintegration.

Biography:

For 30 years Astrid has developed policy and managed service delivery to clients in problem solving courts (family violence court and drug court), disability services (forensic disability clients) and correctional services (sex offenders and drug-related offenders). Astrid established and managed the interagency Compulsory Drug Treatment Correctional Centre in Sydney, which is based on a humanistic model.  She has delivered training through the AIJA and AAT NJC regarding engaging defendant behaviour change from the bench. On an international basis, Astrid was involved in a torture prevention project with police and military in Sri Lanka and Nepal, delivered training regarding offender rehabilitation to prison officers and counsellors in St Kitts/Nevis in the Caribbean, designed a Community-Police Mediation Program in New Orleans, and was a moderator for a National Institute of Canada online course for judges regarding problem solving courts. Since 2000, Astrid’s work has been guided by the principles of therapeutic jurisprudence; in 2000 she studied with Professor David Wexler at the University of Puerto Rico and more recently has completed a Masters in Advanced Mental Disability Law through New York Law School. She is published in therapeutic jurisprudence, offender rehabilitation, and human rights.

Increasing Capacity to Cope : A Toolkit for lawyers of clients with a disability or experience of trauma.

Mr Daniel Toohey1

1University of Newcastle, Callaghan, Australia

This practical workshop will demonstrate some tools lawyers can use to provide better support for clients who are struggling to engage with legal processes due to a disability or experience of trauma.  It is expected these tools will help lawyers take a more therapeutic jurisprudence informed approach that cares about the psycho-social effects of legal processes and seeks to improve the wellbeing of clients.

Susan Daicoff refers to calls for lawyers to move from the ‘zealous advocate’ to ‘wise counsellor’: focussing more on telling the client the legal ‘truth’ they need to hear instead of aggressively carrying out the client’s wishes.  The aim is to have a better informed client who is empowered to make wise decisions with an understanding of wellbeing that recognises legal issues are only one part of the puzzle.

Lawyers of clients with disability or experience of trauma can need additional skills to improve the capacity of the client to cope with conflict and empower the client to make wise decisions in difficult circumstances.

This workshop demonstrates some tools lawyers can use to help clients who are struggling to cope with conflict, borrowing heavily from tools used successfully in the human services sector.  The workshop will:

  • Highlight aspects of legal processes that are commonly problematic for clients with disability or experience of trauma.
  • Describe a number of practices used within the human services sector to improve communication and wellbeing of clients with disability or experience of trauma.
  • Demonstrate through role-play some ways in which these tools can be used in legal practice.

Biography:

Daniel’s legal and counselling qualifications, and interest in resolving strata and community disputes let him to research towards preventative dispute resolution, and ultimately to work in community development with a focus on connecting people with a disability or experience of trauma into their local communities.  Having worked in tribunals in both Queensland and New South Wales, Daniel is now working as a legal practitioner and clinical teacher in the University of Newcastle’s free legal clinic.

Therapeutic Jurisprudence, Traditional Sentencing Theory and Behavioural Science: Towards Interdisciplinary Coherence

Michelle Edgely1

1   University of New England, School of Law, Armidale NSW 2351, medgely@une.edu.au 

Arguably, traditional sentencing theory reflects a balance between Kantian retributivism based on assumptions of formally equal rational and autonomous moral agents, and pragmatic Benthamite utilitarianism. Although both have normative underpinnings, arguably, these sentencing philosophies can lead to anormative sentencing practices because both theories arguably give insufficient attention to the humanity and moral interests of offenders.  In the sentencing context, TJ is a normative philosophy that urges legal actors and procedures to aim to minimise anti-therapeutic and maximise pro-therapeutic impacts on offenders when it can do so without compromising other important legal values. TJ has often drawn justification from utilitarian concerns, such as its potential to reduce recidivism; or from human rights concerns such as its tendency to better recognise the health and welfare needs of offenders.  While recognising the importance of these perspectives, this paper will argue that a significant strength of TJ is that it imbues legal practice with state-of-the-act behavioural science knowledge. The crime prevention function of sentencing is enhanced both theoretically and pragmatically, when law and practice is imbued with scientific knowledge drawn from evidence-based behavioural sciences. Given the complexities involved in understanding human behaviour and influencing behavioural change, such interdisciplinary knowledge helps the law move towards a more scientifically coherent praxis.

Biography:

Michelle Edgely is in the final stages of her PhD which examines the challenges involved in mainstreaming TJ in relation to mentally disordered offenders. She has published on TJ related issues and on other criminal procedure related issues.

Respect, Recovery and Risk: exploring the opportunities and challenges of a consumer-focused hearing in the civil and forensic jurisdictions of mental health tribunals

Anina Johnson1, Matthew Carroll2

1 Mental Health Review Tribunal, NSW, PO Box 2019, Boronia Park, NSW 2111

2 Matthew Carroll, Mental Health Tribunal, Vic Level 30, 570 Bourke St, Melbourne Victoria 3000 Australia

In each Australian jurisdiction mental health tribunals make orders that have a considerable impact on individual liberties.  Tribunals can order that individuals be detained in a mental health facility, required to take psychiatric medications, or be subject to electroconvulsive treatment.  Some mental health tribunals also have a forensic jurisdiction, which can have a significant impact on the lives of those found unfit to plead or not guilty of a criminal offence by reason of mental impairment.

The individuals who may be the subject of Tribunal orders are often highly vulnerable.  They can face significant barriers to their participation in Tribunal proceedings, by reason of illness, the impact of treatment or their broader circumstances.

Non-adversarial and solution-focused procedures are an invaluable tool in promoting genuine participation in hearings and decisions.  These approaches are also consistent with human rights and recovery principles which are embedded in modern mental health legislation.

Mental Health Tribunal decisions are made in the context of institutional and community attitudes to risk and to mental illness which can run counter to the implementation of a therapeutic approach.  Like many courts and tribunals, Mental Health Tribunals work in an environment where both the public agencies and the Tribunals are under resource limitations. Articulating non-adversarial and solution-focused processes and promoting adherence to them is an ongoing challenge, and can lead to conflict and resistance.

This workshop will explore these challenges by drawing on the distinct experiences and approaches of the NSW Mental Health Review Tribunal and Victorian Mental Health Tribunal, in exercising both civil and forensic jurisdictions.

Biography:

Anina was appointed as the Deputy President (Forensic) of the NSW Mental Health Review Tribunal in November 2012.

Anina sits regularly on Tribunal hearings in both its Forensic and Civil jurisdiction. She is also responsible for guiding the work of the Forensic Division, and works closely with mental health services, disability services, corrective services and other stakeholders on strategic issues in relation to forensic mental health.

Prior to her appointment to the Tribunal, Anina worked as a lawyer in the public sector for more than 15 years. She has a broad range of experience as both solicitor and advocate across areas including administrative law, criminal law, constitutional law, child protection and coronial inquiries.

Anina has published and presented in the areas of mental health, access to government documents and administrative law.  She is an active member of the NSW Executive of the Council of Australasian Tribunals, and is currently convenor of the COAT Conference organising committee.

Matthew is a lawyer with extensive experience in the field of human rights and anti-discrimination gained from roles in both Australia and overseas.  Matthew was appointed President of the Victorian Mental Health Review Board and Chairperson of the Psychosurgery Review Board in 2010.  Immediately prior to taking up these appointments he was manager of the Human Rights Unit at the Victorian Equal Opportunity & Human Rights Commission.

Upon commencement of Victoria’s current Mental Health Act on 1 July 2014 Matthew became President of the Mental Health Tribunal.

 

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About the Association

The Australasian Institute of Judicial Administration (AIJA) is a research and educational institute associated with Monash University. It is funded by the Law, Crime and Community Safety Council (LCCSC) and also from subscription income from its membership.

The principal objectives of the Institute include research into judicial administration and the development and conduct of educational programmes for judicial officers, court administrators and members of the legal profession in relation to court administration and judicial systems.

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