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.

Finding the right balance – The Singapore Community Justice and Tribunal Division Experience

Miss Li Tien Wong

District Judge, State Courts Singapore

The paper describes Community Justice and Tribunal Division (CJTD) experience in developing a community justice strategy encompassing both adversarial and non-adversarial justice tools in resolving disputes, and working with stakeholders to build a cohesive society.

The CJTD is the newest justice division in the Singapore State Courts and oversees both community and relationship cases. A unique feature of the CJTD is that the judges will deal with both civil and criminal process components unlike other justice divisions.

The CJTD consists of the Small Claims Tribunals (SCT), the Community Disputes Resolution Tribunals (CDRT) and also handles applications under the Protection from Harassment Act (POHA).

The SCT provides a speedy and inexpensive process to handle small claims arising from disputes in contract for goods or services and residential tenancies. The claim will proceed for adjudication if there is no settlement by the SCT mediators. The SCT is not bound by strict rules of evidence or by normal court procedures, and there is no legal representation to keep costs to a minimum.

The CDRT is the last resort to deal with intractable neighbourly dispute cases. Mediation plays a critical role, and the CDRT may direct litigants to undergo counselling or mediation. The CDRT may also make special directions or impose a compliance bond or impose criminal sanctions or exclusion from residence orders.

The CJTD judges hear POHA applications under the civil court process and may grant a protection order to protect persons against harassment and unlawful stalking. There is also a simple self-help process for a subject of a falsehood to apply for the falsehood to be set right and the true facts brought out clearly.

The paper will also examine how CJTD has established working relationships with community stakeholders to offer therapeutic counselling services to address the underlying issues affecting the litigants.

Biography:

Ow Yong Tuck Leong is a District Judge in the Community Justice and Tribunals Division of the State Courts. Mr Ow Yong graduated from the National University of Singapore in 1998 and was admitted as an advocate and solicitor of the Supreme Court in 1999. He joined the Singapore Legal Service in 2000 and has served in the Registry of Companies and Businesses, the Attorney-General’s Chamber and the Competition Commission of Singapore before his appointment in the State Courts in 2011.

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.

Specialist Family Violence Courts – developing best practice.

Magistrate Kate Hawkins1, Lisa Eldridge2, Robert Challis3

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

2 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Lisa.Eldridge@magistratescourt.vic.gov.au

3 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Robert.Challis@magistratescourt.vic.gov.au

The increase in demand and complexities of family violence matters is a growing challenge for courts.  In Victoria, a Royal Commission into family violence found that a specialist and therapeutic jurisdiction is the recommended approach for courts to ensure that victims are safe and perpetrators are kept in view.

The Victorian Government has committed to implementing the 227 recommendations of the Royal Commission and released a 10 year plan (Ending Family Violence: Victoria’s Plan for Change) that incorporates specialist family violence courts in its vision.

This paper outlines the key features of the proposed Victorian specialist family violence courts model and how it sits within the whole of government response to family violence.

Biography

Magistrate Kate Hawkins was appointed to the Magistrates’ Court of Victoria in 2001.

Since July 2011 Magistrate Hawkins has been the Co-Supervising Magistrate for Family Violence and Family Law, together with Deputy Chief Magistrate Felicity Broughton. She provides judicial leadership of the Court’s implementation of the broad ranging recommendations made by the Victorian Royal Commission into Family Violence. This includes rolling out specialist family violence courts statewide across Victoria.

In 2016 she facilitated a roundtable dedicated to reducing the risk to families affected by family violence navigating the court system at the COAG National Summit in Brisbane.

Prior to appointment Magistrate Hawkins practiced as a solicitor and was a partner at a major Melbourne law firm.

 

 

The Assessment and Referral Court (ARC) List & Borderline Personality Disorder (BPD) – are they compatible?

Glenn Rutter1, Brianna Chesser2, Glen Hardy3

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

2 Australian Catholic University, 115 Victoria Pde, Fitzroy, Vic, 3065.  Brianna.Chesser@acu.edu.au

3 Magistrates’ Court of Victoria, GPO Box 882, Melbourne, Victoria, 3000.  Glen.Hardy@courts.vic.gov.au mailto:Glenn.Rutter@courts.vic.gov.au

There is evidence that individuals who meet the criteria for a diagnosis of Borderline Personality Disorder (BPD) are over-represented in the criminal justice system. However, the behaviours and patterns of relating associated with BPD pose particular challenges for therapeutic jurisprudence programs that attempt to work with them.

The Assessment and Referral Court (ARC) List is a specialist court list in Victoria established to address the needs of accused persons who have a mental illness/cognitive impairment.  Operating at the Melbourne Magistrates’ Court the ARC List combines a problem solving court approach with case management support for accused persons.

The ARC List has received over 1100 referrals since its inception in 2010.  It has improved participants’ quality of life, reduced reoffending and provided participants with the opportunity to address the underlying causes of their offending behaviour.  The extent to which participants embrace the ARC List is reflected in the 80% completion rate of those accepted onto the program.

This paper examines the outcomes of over fifty participants with BPD who have participated in the ARC List and explores their interactions within the program.

 

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.

 

Dispute Assist – a new service initiative by the Australian Taxation Office providing tailored assistance to unrepresented individual taxpayers.

Cameron Grant1, Ratka Markovska2, Benjamin de Santis3, James Pittar4

1 Australian Taxation Office, cameron.grant@ato.gov.au 

2 Australian Taxation Office, ratka.markovska@ato.gov.au 

3 Australian Taxation Office, benjamin.desantis@ato.gov.au

4 Australian Taxation Office, james.pittar@ato.gov.au

Introducing Dispute Assist – a new service initiative by the Australian Taxation Office (ATO) providing tailored assistance to unrepresented individual taxpayers (Clients).

There are many reasons why Clients find themselves in dispute unrepresented. These can include, but are not limited to: relationship breakdowns, illness (including mental health difficulties) and sudden disability within the family.

These can all greatly affect a Client’s ability to manage their dispute, and are often the catalyst for a sudden drop in compliance with taxation obligations.

This financial year the ATO will be conducting a pilot program where Dispute Assist officers (Guides) will support Clients through ATO dispute processes.

The Guides are not decision makers with respect to a Client dispute; rather, their primary objective is to support Clients in achieving resolution of the dispute in a way that is:

  • Accessible;
  • Fair,
  • Proportionate to the importance and complexity of the dispute; and
  • Promotes public trust and confidence in the decision-making of the ATO.

In congruence with this approach, the Guides will observe the following guiding principles:

  • Connect Clients with the right people so their dispute can be resolved as early as possible;
  • Ensure that all available options to resolve the matter have been explored (including payment options);
  • Provide assurance that the process has been as fair as it can be; and
  • Ensure Clients are aware of their review rights if still dissatisfied with the decision.

Biography:
Cameron Grant is an Executive Director within the Review and Dispute Resolution area of the Australian Taxation Office, currently responsible for disputes in the Individuals market. Cameron also leads the Dispute Assist project, is a case and technical leader, and an ATO facilitator resolving disputes as part of the ATO’s in-house facilitation service. Cameron graduated with a Bachelor of Commerce in 1996, and a Bachelor of Laws in 2003, both from La Trobe University.

Lessons from the coalface: Critical reflections of a lawyer working in the Victorian Assessment and Referral Court List

Tania Wolff

First Step Legal

This paper reflects on the experiences of a legal practitioner who has been involved in the ARC list, Victoria’s mental health court, as a legal practitioner since its inception in 2010 and who has witnessed first hand the positive impact of the court on a variety of clients with differing levels of functioning and complexity of mental illness. This paper draws on a number of case studies to argue that the court has proved to be a touchstone of therapeutic jurisprudence and non-adversarial justice for the vulnerable; where the theory seamlessly aligns with the practice. However, despite the success of the list and the model, this paper also reflects on its limitations which challenge the Court’s ability to be an optimal therapeutic agent.

Biography

Tania Wolff is an Accredited Specialist in Criminal Law by the Law Institute of Victoria and appears regularly as a solicitor advocate in court. Since 2012 she has been the Principal Lawyer of First Step Legal, a specialist, criminal law focused CLC within a mental health and drug and alcohol treatment and rehabilitation clinic. Prior to this role, Tania has worked in private practice in commercial law and as in house legal counsel before working as a criminal lawyer with David Grace QC. She has a particular focus on drug and alcohol related criminal offending and a commitment to advancing therapeutic jurisprudence and justice reinvestment initiatives.

From the despair of Don Dale to a brighter future: how Restorative Justice can lead system change in the Northern Territory

Jared Sharp1

1 General Manager NT, Jesuit Social Services, Smith St, Darwin, NT, 0810 sharpjared@hotmail.com 

This paper will look at the future potential of restorative justice in the Northern Territory youth justice system.

In recent years, court-referred pre-sentence conferences in the NT have emerged as a viable option for young people appearing before the court, prior to being sentenced. Their initial success hints at the enormous potential for restorative justice conferences in the NT if used more broadly.

The paper will consider some case studies of conferences involving Aboriginal young people in the last few years. It will look at impacts of these conferences on the young people concerned, including Aboriginal young people who might have been previously considered too entrenched in the system for a restorative process to be considered. For some of these young people, participation in a conference has been the catalyst for tremendous change, both in terms of halting their offending trajectory, as well as improving their relationships with carers and family.

But are there lessons that can be drawn to guide a future, increased role for restorative justice in the NT youth justice system?

This paper will look at some of the structural changes needed to increase the utilisation of restorative justice conferences in the NT. These include the expert, specialist resources to facilitate the process, assessment criteria, and timeframes for convening a conference.

At the same time, cultural safety of restorative justice processes for Aboriginal young people must be paramount.[1] This paper will look at strategies to make restorative justice conferences a fair and accessible process that Aboriginal young people can participate in. It will look at cultural safety planning and other supports that need to be put in place.

The paper will conclude by looking at the post-Royal Commission landscape in the NT, which could see restorative justice as the norm rather than exception. It will consider the expansion of restorative conferences to other areas such as family conferences for young people in the child protection system. And it will also look at whole-of-system reform to embed restorative justice as the dominant paradigm for how conflicts affecting young people are resolved in the NT.

It will also look at the possible use of restorative justice in schools, in the remote context involving Aboriginal Elders and community leaders, for vulnerable 18-24 year olds in the criminal justice system, to resolve conflict in the youth detention context, and to empower young people to exert positive peer influence through the peer panel model currently in operation in some parts of the United States.

[1] See, for example Daly, ‘Restorative Justice in Diverse and Unequal Societies’ (1999): https://www.griffith.edu.au/__data/assets/pdf_file/0013/50251/kdpaper5.pdf

Biography:

Jared is the General Manager, Northern Territory, Jesuit Social Services.

Jared’s background is mainly as a criminal lawyer specialising in youth justice for the North Australian Aboriginal Justice Agency (NAAJA). In 2012, Jared was extremely fortunate to receive a Churchill Fellowship to consider culturally strengthening initiatives to support Aboriginal young people in the justice system. Jared was also recently awarded a 2016 NT Human Rights Award in the youth category.

Jared has an extensive involvement in mediation and restorative justice, and is passionate about expanding non-adversarial justice approaches, in particular youth justice conferencing in the NT youth justice system.

Jared’s role at Jesuit Social Services includes bringing its highly successful youth justice conferencing model run in Victoria since 2003, to the Northern Territory.

Forgiveness & Apology in the Aftermath of Serious Crime: Restorative Opportunities in Post-sentencing, Prison based Practice

Dr Jane Bolitho1, Ms Jenny  Bargen2

1University Of New South Wales Australia, UNSW, Australia, 2University of Sydney, Sydney, Australia

In this paper we explore the realities of forgiveness & apology an empirical study of 74 victim offender conferences completed by the Restorative Justice Unit in the NSW Department of Justice in a correctional setting, post-sentencing following serious crime (including murder, manslaughter, armed robbery). While restorative justice advocates such as Walgrave (2008) have argued that apology and forgiveness are essential elements in restorative justice processes we offer a revised lens through which to conceive forgiveness and the place of apology following serious crime, by drawing on of literatures from transitional justice to philosophy, psychology, ethics and law.

Biography:

Jane is an active member of the restorative justice and dispute resolution research hub at UNSW Australia where she works as a Senior Lecturer in Criminology. Over fifteen years her research has explored the dynamics of restorative justice focusing on the experiences of victims and perpetrators in youth justice and adult models, in the aftermath of both minor (pre sentencing) and violent crime (post sentencing) cases. Jane is an accredited mediator and a practising youth justice conference convenor.

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