Hansard debates

Mr GRIMLEY (Western Victoria) (11:39): I move motion 590 standing in my name:

That this house:

(1) notes that:

(a) alcohol and other drugs greatly contribute to recidivism by offenders;

(b) many courts, including drug courts, that use drug and alcohol testing and alcohol monitoring technology, have seen a reduction in alcohol and other drug related crimes;

(c) drug and alcohol testing and monitoring can provide offenders with incentives to abstain from alcohol and the ability to provide wraparound services;

(d) Victoria already offers some regular testing programs, including SCRAM continuous alcohol monitoring for parolees;

(e) New Zealand’s alcohol and other drug testing (AODT) community trial, and other jurisdictional equivalents, could be considered for use in Victoria, potentially through a sentencing deferral option;

(2) calls on the government to investigate reforms to our legal system, including:

(a) New Zealand’s AODT program that was rolled out nationwide in March 2021;

(b) the 24/7 Sobriety program, which is a ‘swift, certain and fair’ approach to reducing recidivism in alcohol and other drug offenders, which has been operating in South Dakota since 2005; and

(c) the use of SCRAM continuous alcohol monitoring technology, which is being rolled out across the United Kingdom, as a potential sentencing option by courts.

In Victoria we have a problem. More than half of our offenders return to corrective services inside just two years. It is estimated that over 77 per cent of crime is associated with the use of alcohol and other drugs. As the Age put it very recently, and I quote:

… drugs and alcohol are … fertile ground for criminal offending.

Ms Kilkenny in the other place also recently spoke on this issue, saying, and I quote:

We have seen extensive research that reveals the really strong links between illicit drug taking and offending …

Throughout my motion today I will offer some solutions to break this relationship between alcohol and other drugs—or AOD—use and crime, and I will also ask the government to commit to researching the models I propose in order to run a best practice pilot to address this problem. In an Australian Institute of Criminology—AIC—study conducted in 2019, 78 per cent of Australian offenders tested positive to at least one type of drug. Almost one-third of offenders 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 per cent 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 will refer to it, started in South Dakota when Judge Larry Long was seeing the same repeat drink drivers continually come before him in court. From 2004 he decided instead to sentence those offenders to sobriety 24 hours a day for usually around three to six months. They had to go to their local police station at 7.00 am and 7.00 pm every day for a breath test. If they failed or did not show up, they would be held in the cells for 24 hours. If they breached again, they would go in for 48 hours, and on the 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, who 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- to 40-year-old men, a 12 per cent reduction in drink driving related arrests, a 9 per cent reduction in family violence and at least an 80 per cent reduction in the probability of a DUI arrest one year after participation. Interestingly, the offenders actually end up enjoying a 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 is not a mandatory requirement. Professor Keith Humphreys puts 24/7’s success best, and I quote:

… mandatory sobriety yielded a 4.2% drop in the South Dakota’s 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.

That is one of Derryn Hinch’s Justice Party’s biggest goals—to protect the vulnerable, including women. Judge Long and others called this approach a ‘swift, certain and fair’ model. It is swift because the reprimand for a breach happens quickly, it is certain because there is no discretion for that reprimand and it is 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’, and if they eat that muffin, you give them an immediate and proportionate response to teach them a lesson. It might be, for instance, 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 is ridiculous, but that is 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 is based on South Dakota’s 24/7 but is solely tech focused, using dermal alcohol monitors called SCRAM CAMs. Secure, continuous, remote alcohol monitoring CAMs are 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 offender on a sobriety order. Basically the ankle bracelet tests a 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 sanitiser, perfume or the like—it is pretty remarkable. Offenders have referred to SCRAM CAM as a lifesaver. Every drink they do not 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 three pilot sites and proved massively successful, according to UK police minister Kit Malthouse.

I spoke directly to Mr Malthouse, and he says that 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, eight sanctions and six court convictions each. This is typical of a UK community sentence. Ninety-two per cent of these career criminals did not breach once in the pilot. Mr Malthouse says that 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, and I quote:

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 beyond my sentence.

Mr Malthouse said many people wanted to keep the tag on past their sentence, as it helped keep them accountable. Kit said that some MPs thought that taking away people’s right to drink was too punitive. Sound familiar? If you cannot drink without breaking the law, I think this warrants any rights being stripped away, at least for a little while. Although SCRAM CAM has not worked for everyone, the overall results have been incredible as one tool for magistrates to use where appropriate. For perspective, just 6 per cent of offenders on SCRAM ended up in the courts for non-compliance. Kit said no extra expense or resourcing was needed, nor does SCRAM CAM have any financial constraints on police or corrections. He says it actually saves money and time, if anything.

These two models I have 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 and fair approach. Herald Sun readers over the weekend were frustrated that the bracelets only test for alcohol and not drugs, but international models have the capacity for drug testing as well where it contributed to their offending. Poly-drug users is a big category of offenders also.

The last model is New Zealand’s alcohol and other drug testing community program, or AODT, which as of March this year has been rolled out countrywide. New Zealand, like us, identified that they were sentencing offenders to short periods of imprisonment with a recidivism rate that would not 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 am 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 urine analysis testing based on reasonable grounds only; tier 2 is a randomised but frequent testing regime, as well on reasonable grounds; and 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 for offenders to access testing.

For breaches, the repercussions were decided by probation officers and 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 is not necessarily the gold standard. There is no specific framework on how to deal with positive tests or those that do not turn up, which unfortunately means offenders do not have an action-consequence model to consider—think back to the muffin on the countertop idea. According to the UK police minister, I quote:

Critical to the success—

of a program for AOD offenders—

is that there is 100 per cent certainty of consequence … because the moment you don’t enforce on a breach then they think 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 $9000, instead of South Dakota’s US$1500, 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 crime and therefore less victims of crime needing financial assistance—the capacity for 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 a day to manage. If we address someone’s AOD issues and they do not reoffend, we are saving an enormous amount. You will not find me saying that prison should not 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 that the government might explore a deferred sentencing program, based on these three 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 a recommendation from the court or even from their own defence lawyer to help mitigate their eventual sentencing.

Deferred sentencing currently exists in Victoria but is not structured to be as intensely monitored as what I am proposing. We hope that for an offender who successfully completes a 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 the program referrals, and from 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 will 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 123 days, whereas in New Zealand’s less intensive program offenders could be tested for two years.

We would also like to see further adoption of SCRAM CAMs in other areas of the justice system. As Magistrate Tony Parsons said in 2017, magistrates should have an option to sentence using SCRAMs. Given we allow AOD testing through community correction orders 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 actually currently uses SCRAM for parole and post-sentence conditions.

We have monitored over 1000 people with SCRAM CAMs. Currently Victoria’s parolees have about a 96.5 per cent sober day rate, which means offenders are sober for 96.5 per cent of the time. If the offender has a drinking episode, they have their parole revoked or another action is taken. It is a real pity that we have not embraced it further in Victoria, but given this information, it seems the platform does exist. This approach would fix the program by creating an honesty system for offenders and their AOD use. Frequent monitoring keeping offenders accountable to themselves and their goals as well as their case manager would enable conversations about wraparound services, as their AOD use would be evidence-based, reducing the recidivism rate, meaning less risk to the community as a result of the program, and as a deferred sentencing option it would encourage offenders to stay sober.

Some elements we would 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 AOD trial and other swift, certain and fair models around the world that when people know what the punishment outcome is they are less likely to breach. We would also like to know exactly how services such as AOD rehab and counselling would slot into such models. How would you incorporate supports similar to Victoria’s Drug Court model, including housing specialists, relationship programs, AOD rehab, anger management and employment specialists? We would also like to discuss with the government the threshold at which someone is at 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 are not quite hitting the mark. The recent announcement about a zero blood alcohol content requirement for repeat drink drivers sounds great, but the reality is you only catch the driver when they are breaking the law. It is not preventative; it is 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, and the same should occur with this program. As part of the request for a best practice pilot it would be remiss of me not to acknowledge how desperately Victoria requires more investment in AOD beds and counselling. It is obvious that given the requirement for support services as part of the program model you would be setting the program up to fail if you did not invest heavily in AOD beds and counselling. When you think about what recidivist AOD crime costs our state this is a drop in the ocean.

I would just like to take a moment in summing up to thank a lot of people 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 and Drug Foundation of Victoria; the Victorian Alcohol and Drug Association; the Uniting Church in Australia; representatives from No to Violence; the La Trobe Centre for Alcohol Policy Research; the UK policing minister, Kit Malthouse; New Zealand Department of Corrections; also Professor Joe Graffam and so many others. Also thank you to the Attorney-General and the Attorney’s office, in particular Sharon, in liaising with us about our proposal and taking this issue 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 many of our 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 evidenced-based ways. To those in this place who purport to take an evidenced-based approach to reform, there is 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 alcohol and other drug use and reoffending means less victims of crime. That is my aim here in Parliament, and I commend this motion to the house.