Drug Courts
Drug Courts are specialist courts that deal with offenders who are dependent on drugs. They emerged as a result of growing disenchantment with the ability of traditional criminal justice approaches to provide long-term solutions to the cycle of drug use and crime. Drug Courts aim to assist drug-dependent offenders to overcome both their drug dependence and their criminal offending.
The first of the Drug Courts began operation in the United States in 1989. Drug Courts have also been trialed in the United Kingdom, Canada and several Australian jurisdictions. The experience in courts of therapeutic jurisprudence including Drug Courts in the United States has strongly influenced the roles and functions of the N.S.W. Drug Court. (A bibliography can be found at www.therapeuticjurisprudence.org)
The Drug Court of New South Wales (NSW) is the first Drug Court to be trialed and evaluated in Australia. The Court began operation as a two-year pilot in February 1999. The evaluations of the Bureau of Crime Statistics and Research were published in February 2002 and can be found at (www.lawlink.nsw.gov.au/bocsar). Following these evaluations it was decided to continue the program.
How the Drug Court operates
The conduct of the Drug Court is governed by
The Court has Local Court and District Court jurisdiction. The court operates from the Parramatta Court complex.
Objects of the Drug Court Act
Section 3 of the Drug Court Act 1998 sets out the objectives the Drug Court seeks to achieve. These are:
- to reduce the drug dependency of eligible persons, and
- to promote the re-integration of such drug dependent persons into the community, and
- to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies.
This objective is to be achieved by establishing a scheme, under which drug dependent persons, who are charged with criminal offences, can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency, and should also increase the person's ability to function as a law abiding citizen.
The Drug Court Team
The Court works in collaboration with a number of other organisations. These include the Department of Corrective Services, including the Probation and Parole Service, and the Department of Health, through Justice Health and the Area Health Services. In addition a large number of residential rehabilitation services provide treatment for Drug Court participants. Officers of the Director of Public Prosecutions, a Police Prosecutor and the Legal Aid Commission also form part of the Drug Court team.
Part of the role of the Drug Court team is to oversight the progress of participants through the program, and jointly formulate strategies to assist participants' rehabilitation. The team consists of the DPP solicitor, the Police representative, the Clinical Nurse Consultant, the Legal Aid solicitors, the Probation and Parole coordinator, the Registrar of the Court and the Judge.
Eligibility and Selection
To be eligible for the Drug Court a person must:
- be highly likely to be sentenced to full-time imprisonment if convicted;
- have indicated that he or she will plead guilty to the offence;
- be dependent on the use of prohibited drugs;
- reside within the catchment area (specified areas of Western Sydney);
- be referred from a court in the catchment area;
- be 18 years of age or over; and
- be willing to participate.
A person is not eligible if he or she:
- is charged with an offence involving violent conduct;
- is charged with a sexual offence or an offence punishable under Division 2 Part 2 of the Drug Misuse and Trafficking Act (1985); or
- is suffering from a mental condition that could prevent or restrict participation in the program.
A Local or District Court in the defined catchment area must refer offenders who appear to meet the Drug Court eligibility criteria to the Drug Court. The initial referral is by a telephone call. Before the offender is brought to the Drug Court, the Drug Court Registry staff conduct an preliminary eligibility screening based on the person's age, location of residence and referring court.
Whenever there are more eligible applicants than there are available program places, a weekly random selection process occurs to determine which applicants are assigned to available places on program.
At first appearance before the Drug Court preliminary inquiries as to eligibility are made, including an evaluation of drug dependency.
Detoxification in Custody
If the Court decides that an applicant is eligible, the person will be remanded in custody for detoxification and assessment. This takes place at the Drug Court Unit which is annexed to the main clinic of the M.R.R.C and is separated from the main gaol inmates. The Court insists that all participants enter custody, even if they are referred to the Drug Court on bail. Whilst in custody further information about the requirements of the Drug Court will be explained, and the participant will be given a copy of the undertaking which details the conditions of a Drug Court program.
The initial assessment takes up to 2 weeks, and includes general and mental health reviews conducted by Justice Health. In view of the incidence of mental health issues, a Clinical Psychologist conducts a weekly clinic at the Court to provide psychiatric services for Drug Court participants.
A treatment plan may require a participant to enter a residential rehabilitation centre, or allow a participant to live in accommodation nominated by a participant and approved by the Court, or in supported accommodation organised by the Court.
After the assessment stage the offender appears before the Drug Court where he or she enters a guilty plea, receives a sentence that is suspended, and signs an undertaking to abide by his or her program conditions. An offender may still be excluded from participation after the assessment stage because of ineligibility; unwillingness to participate; or lack of a highly suitable treatment plan.
Discretionary refusal
The D.P.P. may object to a person’s entry into a Drug Court program because of matters in the person’s antecedents [s7(2)(b)]. The Court will be concerned about matters of violence, and may require evidence to be presented about the likelihood of a person committing a violent or dangerous offence while on a program. In such a case a psychiatrist from the Corrections Health Service will be asked to express an opinion based on details of past offences or behaviour, and an examination of the participant. Other evidence may also be obtained.
There is no appeal against a decision taken by the Drug Court to refuse entry to a program.
Offenders who are referred to the Drug Court but do not enter the Drug Court program are usually sent back to the referring court for sentence.
The Drug Court program
Each participant's Drug Court program is individually tailored to address his or her specific needs. The treatment options offered include abstinence, methadone and buprenorphine programs conducted in either the community or residential rehabilitation settings. Ongoing psychiatric treatment is provided by Justice Health through an outpatients' service at the Drug Court.
There are four fundamental aspects that are common to each Drug Court program:
(1) evidence-based drug treatment;
(2) social support and the development of living skills;
(3) regular reports to the Court regarding participant progress; and
(4) regular testing for drug use.
Each participant's program comprises three phases. Each phase has distinct goals that must be achieved before the participant graduates to the next phase of their program.
- Phase 1 is the 'initiation' phase where participants are expected to reduce drug use, stabilise their physical health and cease criminal activity. In this phase, participants are required to undergo drug testing at least three times a week and to report back to the Drug Court once a week.
- Phase 2 is the 'consolidation' phase where participants are expected to remain drug-free and crime-free, and develop life and job skills. In this phase, testing for drug use is conducted twice weekly and report-back court appearances occur fortnightly.
- Phase 3 is the 'reintegration' phase where participants are expected to gain or be ready to gain employment, and to be financially responsible. In Phase 3, drug testing is conducted twice weekly and report-back court appearances are conducted monthly.
Participants are closely monitored by the Court. The Drug Court team meets before Court each day to receive reports from treatment providers and Probation Officers, and to discuss those participants who will be appearing that day. In the light of this discussion the Judge then speaks to each participant about his or her progress.
Rewards and Sanctions
The Drug Court Act 1998 allows the Court to confer rewards on a participant when they maintain a satisfactory level of compliance with their Drug Court. Sanctions may be imposed on the participant if they fail to comply with their program. Participants are informed of the types of behaviour that attract rewards and sanctions.
Rewards can include:
- conferral of specified privileges such as being allowed to engage in employment in Phase 1
- a change in the frequency of counselling or other treatment,
- a decrease in the degree of supervision,
- a decrease in the frequency of testing for drugs,
- a decrease in the amount of any monetary penalty payable to the Drug Court,
- a change in the nature or frequency of the vocational and social services which the drug offender is required to attend.
Sanctions can include
- withdrawal of privileges
- an increase in the frequency of counselling or other treatment,
- an increase in the degree of supervision,
- an increase in the frequency of testing for drugs,
- a requirement that the drug offender pay a monetary penalty to the Drug Court,
- imprisonment in a correctional centre,
- a change in the nature or frequency of the vocational and social services the offender is required to attend.
Termination of a program
A program will last for at least 12 months unless it is terminated sooner. A Drug Court program can be terminated when:
- The Court decides that the participant has substantially complied with the program,
- The participant applies to have it terminated, or
- The Court decides that the participant is unlikely to make any further progress in the program, or that further participation poses an unacceptable risk to the community that the offender will re-offend.
When a program is terminated the Court must reconsider the initial sentence. If appropriate that sentence can be set aside and another sentence imposed in its place. In deciding the final sentence the Court will take into consideration the nature of the offenders participation in the program, any sanctions that have been imposed and any time spent in custody during the program. The initial sentence cannot be increased.
When the Court finds that a participant has substantially complied with a program a non-custodial sentence is the usual order. The Court awards certificates of graduation and of achievement to participants who meet or substantially comply with the standards the Court has set.
Appeals
There is no automatic right for a person to enter a Drug Court program, and no appeal is allowed against a decision of the Drug Court to refuse to allow a person to enter a Drug Court program or against the initial sentence imposed. [Drug Court Act 1998 s7(5) & Criminal Appeal Act 1912 s5AF] When a person is on a program there is no appeal against any decision taken by the Drug Court relating to the conditions of a program or the imposition of rewards or sanctions [s10(3),11(2)].
However, appeals against a final sentence imposed after a sentence is terminated can be made.
