I move motion number 590 standing in my name.
In Victoria, we have a problem. More than half of our offenders return to corrective services inside just two years. It’s estimated that over 77% of crime is associated with the use of alcohol and other drugs. As The Age put it very recently, “drugs and alcohol provide … fertile ground for criminal offending.” Ms Kilkenny – in the other place – also recently spoke on this issue saying “We have seen extensive research that reveals the really strong links between illicit drug taking and offending”.
Throughout my motion today, I’ll offer some solutions to break this relationship between AOD use and crime, and also ask the Government to commit to researching the models I propose in order to run a ‘best practice’ pilot to address the problem.
In an AIC study conducted in 2019, 78% of Australian offenders tested positive to at least one type of drug. Almost one-third (31%) of detainees reported having consumed alcohol in the 48 hours before detention.
The AIC has also previously found that, despite their lower representation in arrests, female detainees were affected by drugs 73% of the time of their offending.
Studies in this area repeatedly say the same thing: drugs and alcohol are huge contributors to crime.
Through this motion, I will identify some possible solutions to the incredible amount of recidivist AOD offending here in Victoria. More specifically, I will focus on three specific models and the need for a pilot program to help eliminate these offenders’ relationships with AOD (and set them on a positive trajectory, away from courts and prisons).
The first of these three models is 24/7 Sobriety.
“24/7” as I’ll refer to it, started in South Dakota when Judge Larry Long was seeing the same repeat drink drivers continuously come before him in court. From 2004, he decided instead to sentence those offenders to sobriety 24 hours a day for usually around 3-6 months.
They’d have to go to their local police station at 7am and 7pm every day for a breath test. If they failed or didn’t show up, they’d be held in the cells for 24 hours. If they breached again, they’d go in for 48 hours. On a third occasion a judicial review would occur.
Due to its success, the program is now being widely adopted in the US, the UK and beyond.
Indeed, that success was reflected in a comprehensive program evaluation conducted by the independent research centre “RAND”, headed by Dr Beau Kilmer (whom my office has met). Using very reliable, widespread data across different counties, the 24/7 evaluation found;
- A huge reduction in car crashes of 18-40 year-old men;
- A 12% reduction in drink-driving related arrests;
- A 9% reduction in family violence and;
- An at least 80% reduction in the probability of a DUI arrest 1-year after participation
Interestingly, the offenders actually end up enjoying good rapport with law enforcement given they see them twice a day. Offenders can keep their job, attend programs voluntarily and repair the family unit. All offenders are offered treatment and some accept that offer, but it’s not a mandatory requirement.
Professor Keith Humphreys puts 24/7’s success best: “[South Dakota’s] mandatory sobriety yielded a 4.2% drop in ‘all-cause adult mortality’. Because three-quarters of participants are male, it is particularly striking that the decrease in mortality was even higher among the state’s women, who might otherwise have suffered fatal consequences from others’ drinking.” …And that is one of Derryn Hinch’s Justice Party’s biggest goals; to protect the vulnerable, including women.
Judge Long – and others– call this approach a ‘swift, certain and fair’ model. It’s ‘swift’ because the reprimand for a breach happens quickly; it’s ‘certain’ because there’s no discretion for that reprimand and it’s ‘fair’ because the response is measured rather than overly punitive.
For those wondering why this program is so effective, think of it like a muffin on the counter. You say to your child: ‘don’t eat that muffin on the counter’. If they eat the muffin, you give them an immediate and proportionate response to teach them a lesson; it might be no TV for the night. But when have you ever told your child: ‘if you eat that muffin, I’ll give you a punishment that I haven’t established yet sometime down the track’. It’s ridiculous, but that’s literally how our legal system works in practice.
As a result of this program’s long-running success, the USA is now moving away from ignition interlock devices in order to treat the person not the car. Go figure.
The second model is the UK model. It’s based on South Dakota’s 24/7 but is solely tech-focused, using dermal alcohol monitors called “SCRAM CAM”.
SCRAM CAM is a Continuous Alcohol Monitor, manufactured by Alcohol Monitoring Systems since 2003. These devices are used by courts worldwide to apply an evidence-based approach to determining sanctions for the recidivist offenders on sobriety orders.
Basically, the ankle bracelet tests the person’s sweat every 30 minutes for the presence of alcohol and then sends the information to law enforcement for action. There are different ways of seeing if someone has put something between the skin and the bracelet, if the bracelet has been removed or if someone has sprayed the device with hand sanitizer, perfume or the like. It’s pretty remarkable.
Offenders have referred to SCRAM CAM as a “life saver”. Every drink they don’t take is a step towards long-term behaviour change.
Prior to its introduction, the UK Government was confronting 700,000 alcohol-fuelled violent incidents annually. The SCRAM CAM bracelets were initially rolled out at 3 pilot sites and proved “massively successful” according to UK Police Minister Kit Malthouse.
I spoke directly to Mr Malthouse and he says MPs need to “take a leap of faith” in implementing a program like this.
In one pilot, 111 offenders had an average of 12 prior arrests, 8 sanctions and 6 court convictions EACH; this is typical of a UK community sentence. 92% of these career criminals did not breach once in the pilot.
Kit says the 120 day limit on how long someone could wear the bracelet inhibits some of the program’s success, giving an example of an offender who said to him “‘[do you know what? You’ve saved my life. By clearing the alcohol out of my life, I could see clearly what was going wrong for me… I’d like to keep the tag on beyond my sentence]’.” Kit said many people want to keep the tag on past their sentence as it keeps them accountable.
Kit said some MPs thought taking away people’s rights to drink alcohol was ‘too punitive’ – sound familiar? If you can’t drink without breaking the law, I think it warrants this ‘right’ being stripped away; at least for a while.
Although SCRAM CAM hasn’t worked for everyone, the overall results have been incredible as one “tool” for Magistrates to use where appropriate. For perspective, just 6% of offenders on SCRAM ended up at the courts for non-compliance.
Kit says no extra expense or resourcing is needed nor does SCRAM CAM have any financial constraints on police or Corrections. He says it saves money and time, if anything.
These two models I’ve described are both aimed at alcohol-using offenders only, rather than for the cohort using other drugs, but both systems do allow for drug testing with the same swift, certain, fair approach. Herald Sun readers over the weekend were frustrated that the bracelets only test for alcohol and not drugs, but international models have capacity for drug testing as well where it contributed to their offending; poly-users are a big category of offenders also.
The last model is New Zealand’s “Alcohol and Other Drugs in the Community” Program (or AODT) which as of March this year has been rolled out country-wide.
New Zealand, like us, identified that they were sentencing offenders to short periods of imprisonment, with a recidivism rate that wouldn’t budge and extremely high AOD offending.
In 2017, they passed legislation allowing Corrections to drug and alcohol test offenders on community supervision orders. We have similar provisions, but I’m informed that these powers are unfortunately rarely used by Corrections Victoria.
AODT allocates a recidivist AOD offender a ‘tier’ based on their risk to use AOD or reoffend. Tier 1 is low risk involving urinalysis testing based on ‘reasonable grounds’ only. Tier 2 is a ‘randomised’ but frequent testing regime, as well as on reasonable grounds. Tier 3 is more regular than Tier 2 combined with ‘reasonable grounds’ testing.
Along with satellite sites, the program had a bus that would drive around increasing accessibility to offenders to access testing.
For breaches, the repercussions were decided by Probation Officers. It sometimes involved mandatory rehabilitation, counselling with family members, appointments with housing support or relationship counselling among other strategies. Offenders would go to prison if they were assessed as being a risk to the community.
Now, New Zealand’s program – in my eyes – isn’t necessarily the gold standard. There’s no specific framework on how to deal with positive tests or those who don’t turn up, which unfortunately means offenders don’t have an ‘action; consequence’ model to consider: think back to the ‘muffin on the countertop’ idea. According to the UK Police Minister: “critical to the success [of a program for AOD offenders] is that there is 100% certainty of consequences…, because the moment you don’t enforce a breach, [the offender] thinks they can get away with it.”
A quantitative analysis of AODT has also pointed to the high cost of SCRAM bracelets; however no detailed cost-benefit analysis has been undertaken. This result is also a legacy of each SCRAM CAM unit in New Zealand apparently costing $9,000 instead of South Dakota’s $1,500USD because of their own commercial arrangements.
However, when you think about the impacts of not sentencing someone to an arbitrary jail period (after success in the program), reduced future crime and therefore less victims of crime needing financial assistance, the capacity of major savings seems obvious.
I also remind members that, in Australia, the Productivity Commission estimates that prison costs around $120,000 a year (or $325 a day). In contrast, COAG estimates Community Corrections offenders cost about $47 to manage a day. If we address someone’s AOD issues and they don’t reoffend, we’re saving an enormous amount.
You won’t find me saying that ‘prison shouldn’t be an option for offenders’; in fact a high proportion of them are not safe enough to be in the community. There are some who should never be released. But we do need to strike a balance.
So what exactly am I proposing?
After a very long period of research by my office, we are hoping the Government might explore a ‘deferred sentencing program’ based on these 3 international examples to develop a ‘best practice’ pilot.
Despite an offender pleading guilty to an offence, they have no access to a specific monitoring and testing program before sentencing. You can attend counselling or behaviour change programs but none of these include regular testing and connection with services as a result.
A deferred sentencing option would allow offenders to elect to attend an intensive monitoring program addressing their behaviour before sentencing. This may also be on recommendation from the court; or even from their own defence lawyer to help mitigate their eventual sentencing. Deferred sentencing currently exists in Victoria, but not structured and as intensely monitored as what I’m proposing.
We hope that, for an offender who successfully completes the program, this can be taken into consideration at sentencing and therefore incentivise them to do well in the program.
We envisage magistrate discretion is needed for program referrals and speaking to magistrates firsthand they absolutely agree that they are best placed to make this decision. Based on evidence from other jurisdictions, we believe it would be most successful if the focus of the pilot were recidivist offenders with AOD problems at the core of their offending. In other jurisdictions, offenders need to participate voluntarily also.
Data also consistently shows that ‘the longer someone’s participation, the better’ in order to ingrain those habits and create long-term abstinence. For example, Montana’s 24/7 Program had an average ‘sentence’ of 173 days, whereas in New Zealand’s less intensive testing program, offenders could be tested for 2 years.
We’d also like to see further adoption of SCRAM CAMs in other areas of the justice system. As Tony Parsons said in 2017, Magistrates should have the option to sentence using SCRAMs. Given we allow AOD testing through CCOs and Magistrates, can now impose electronic monitoring on offenders, this seems sensible.
New Zealand also extended their testing program to those on bail, as long as they wore a SCRAM CAM.
Importantly, Victoria currently uses SCRAM for parole and post-sentence conditions. We’ve monitored over 1,000 people with SCRAM CAMs. Currently Victoria’s parolees have about a 96.5% ‘sober day rate’ which means offenders are sober for 96.5% of the time. If the offender has a ‘drinking episode’, they have their parole revoked or another action is taken. It’s a real pity we haven’t embraced it further in Victoria, but given this information, it seems the platform exists.
This approach would fix the problem by:
- Creating an ‘honesty system’ for offenders and their AOD use
- Frequent monitoring keeping offenders ‘accountable’ (to themselves, their goals as well as their case manager)
- Enabling conversations about wrap-around services, as their AOD use would be evidence-based
- Reducing the recidivism rate, meaning less risk to the community as a result of this program
- As a deferred sentencing option, it would encourage offenders to stay sober
Some elements that we’d like to discuss with the Government further include:
- A consistent framework for actions taken in response to breaches (we know from the evidence of the AODT trial and other ‘swift, certain and fair’ models around the world that when people know what the punishment/outcome is, they’re less likely to breach)
- Exactly how services (such as AOD rehab and counselling) would slot into such a model
- How you would incorporate supports similar to Victoria’s Drug Court model, including housing specialists, relationship programs, AOD rehab, anger management and employment specialists
- The threshold at which someone is a risk to themselves, their loved ones or the community, and needs to go to prison, which is very important
In terms of current approaches, we’re not quite hitting the mark. The recent announcement about a zero-BAC requirement for repeat drink- drivers sounds great, but the reality is you only catch the driver when they’re breaking the law. It’s not preventative; it’s reactive.
Through the short term accommodation program at the old Maribyrnong Immigration Detention Centre, strict measures including drug testing and bag searches were implemented very easily… the same should occur with this program.
As part of a request for a ‘best practice’ pilot, it would be remiss of me to not acknowledge how desperately Victoria requires more investment in AOD beds and counselling. It’s obvious that given the requirement for support services as part of the program model, you’d be setting the program up to fail if you don’t invest heavily in AOD beds and counselling. When you think of what recidivist AOD crime costs our state, this is a drop in the ocean.
I’d like to take a moment to thank all of those who have interacted with my office on these issues.
Particular thanks go to:
Judge Larry Long (‘the father of sobriety’), Bill Mickelson (ex-highway patrol in South Dakota), Dr Beau Kilmer from the RAND Research Centre who ran the independent evaluation of 24/7, Dr Keith Humphreys (former Adviser to the US and current adviser to the UK Government on the SCRAM rollout), Dan Altvater from SCRAM, the Foundation for Alcohol Research and Education, the Alcohol & Drug Foundation Victoria, Victorian Alcohol and Drug Association, the Uniting Church Australia, representatives from No To Violence, La Trobe’s Centre for Alcohol Policy Research, the UK Police Minister Kit Malthouse, New Zealand Corrections, Professor Joe Graffam and so many others.
Thank you to the Attorney and your office, especially Sharyn, in liaising with us about our proposal and taking it seriously. We think it will literally save lives.
Lastly, Professor Peter Miller thank you for bringing this ‘swift, certain and fair’approach to our attention some years ago and for answering our many questions. Your genuine desire to reduce the negative effects of alcohol are admirable and we look forward to working with you on other similar matters again.
So in summary, our hope is that the Government will research these programs in a bid to address the very real problem we have in Victoria of high recidivism among AOD offenders. Other jurisdictions are addressing this problem through innovative and evidence-based ways. To those in this place who purport to take an “evidence based approach” to reform, there’s just no way you could oppose my motion on that basis.
This motion has encapsulated over 18 months of research and stakeholder feedback from ‘each side of the fence’ and taking both perspectives into account, we are very pleased to finally ask the Government to take the next step and work towards a pilot program in Victoria.
This comes down to one idea: less perpetrator AOD use and reoffending, means less victims of crime. That is my aim here in Parliament.
I commend this Motion to the House.