Contents:

Purposes Of Policy
Definitions
Policy:
1 Referral Of Applicants
2 The Manner Of Selection
Applicants Who May Not Be “Eligible” Offenders
Applicants Who May Not Be “Appropriate” Given Their Antecedents
3 Aboriginal Or Torres Strait Islander Referrals
4 Applicants Who Are Selected
5 Applicants Who Are Not Selected
6 Previous Participants
7 Previously Refused Applicants

Purposes of Policy

1.1 To ensure that the process of selection of participants for Drug Court programs is transparent, equitable and efficient.

1.2 To enable participants to be selected for programs expeditiously, so as to reduce delay which can interfere with the effectiveness of treatment.

1.3 To enable referring courts to finalise cases of offenders who are not accepted by the Drug Court efficiently and expeditiously.

Act	means the Drug Court Act 1998
Applicant	means a person who is willing to be referred to the Drug Court under Section 6 of the Drug Court Act 1998
Drug Court	means the Drug Court of N.S.W.
Drug Court program	means the conditions accepted by the participant and imposed by the Court under section 7(3)(a) of the Act.
Drug Court team	means a Drug Court judge, the Registrar, the solicitor from the Legal Aid Commission, the solicitor from the Office of the Director of Public Prosecutions, the Police Prosecutor, the Probation and Parole co-ordinator and the Clinical Nurse Consultant who are attached to the Drug Court, and/or the alternates for each.
Participant	means a “drug offender” as defined in the Drug Court Act 1998

1 Referral of applicants

1.1 To be eligible to enter a Drug Court program a person must meet the criteria set out in Section 5 of the Drug Court Act 1998, and clause 5 of the Drug Court Regulation 2005.

1.2 If a person appearing before a referring Court appears eligible and willing to take part in a Drug Court program, that Court must refer the person to the Drug Court¹.

1.3 If a sentencing Judge or Magistrate directs that a person be referred to the Drug Court, the Court Officer at the referring court advises the Drug Court registry by telephone of the name and case details of the applicant.

1.4 As the program resources are limited, a ballot may need to be held to determine which referred offenders can be considered for a Drug Court program².

2.1 Once each week the Registrar, in consultation with the Drug Court team, will determine the number of program places available for females and for males.

2.2 If there are sufficient places available, all applicants will be accepted.

2.3 If there are more referred applicants than available places, the names of apparently eligible applicants for entry will be placed in a ballot.

2.4 The Registrar will not include in the ballot the name of any applicant who has been referred to the Drug Court by a Court that is not a referring Court as defined in the Regulation.

2.5 The Registrar will not include in the ballot the name of an applicant who appears to have had their case or cases adjourned to a referring Court for the sole purpose of gaining access to a Drug Court program. This clause does not prevent a participant being included in the ballot who has been granted an appropriate adjournment to a referring court (for example, to allow the adjourned matters to link up with other matters properly at a referring court).

2.6 A computer generated random selection will be made from the pool of eligible applicants to meet the number of available places.

2.7 If there are sufficient places available for all applicants of a particular gender, applicants of that gender may be accepted without being placed in a ballot, even though a ballot may be necessary for applicants of the other gender.

Applicants who may not be “eligible” offenders

2.8 If it is apparent to the solicitor for the ODPP or the Police Prosecutor that a referred person is not an eligible offender, the ODPP solicitor or Police Prosecutor will advise the Registrar and the solicitor for the LAC of that fact as soon as possible, preferably by email.

2.9 The Registrar will submit that information, together with any available documents, to the Judge in chambers or in court. The Judge will then determine whether or not the referred person should be included in any ballot conducted.

2.10 The Judge may also decide that the referred person’s application to the Drug Court be deferred to a later ballot, so as to allow any necessary information regarding eligibility to be obtained.

2.11 If it is later found that a referred person has been incorrectly excluded from the ballot, then the judge may determine that the offender (if still unsentenced) be included in a subsequent ballot.

Applicants who may not be “appropriate”³ given their antecedents

Pre-ballot:

2.12 If it is clearly apparent to the solicitor for the ODPP or the Police Prosecutor that a referred person is not an “appropriate” person, given his or her antecedents, the ODPP solicitor or Police Prosecutor will advise the Registrar and the solicitor for the LAC of that fact as soon as possible, preferably by email.

2.13 The Registrar will submit that information, together with any available documents, to the Judge in chambers or in court. The Judge will then determine whether or not the referred person should be included in any ballot conducted.

2.14 The Judge may also decide that the referred person’s application to the Drug Court be deferred to a later ballot, so as to allow any necessary information regarding appropriateness to be obtained.

2.15 If it is later found that a referred person has been incorrectly excluded from the ballot, then the judge may determine that the offender (if still unsentenced) be included in a subsequent ballot.

Post-ballot:

2.16 Every applicant who is successful in the ballot will be assessed by a solicitor for the ODPP as to whether he or she is an “appropriate” person for a Drug Court program.

2.17 In respect of each applicant, the solicitor for the ODPP may submit that the applicant is;
• an “appropriate” person,
• not an “appropriate” person, or,
• a person who may or may not be “appropriate”, and requests that the court determine that issue.

2.18 The Court will make a determination as to “appropriateness”. That decision may be made either immediately or on a later date.


2.19 The Court may find that;
• on the information available, the person is appropriate for a Drug Court program.
• on the information available, the person is not appropriate for a Drug Court program.
• the person is an appropriate person, but only if additional special conditions are added to his or her program plan.
• a hearing is to be held to determine appropriateness. If a hearing is required, the Court will hear submissions and determine whether the Court would be assisted by the preparation of a psychiatric report.

3.1 The Drug Court acknowledges the overrepresentation of Aboriginal persons in the criminal justice system, and the proven need to improve access to such programs as the Drug Court program for Aboriginal or Torres Strait Islander (“ATSI”) identifying offenders. The recognition and addressing of special needs is specifically authorised by section 21 of the Anti Discrimination Act 1977.

3.2 To increase the opportunity for ATSI identifying offenders to take part in a Drug court program, the Registrar and the Drug Court team will have regard to the number of ATSI identifying applicants when determining the number of program places available. The number of available places will be increased by one place in each gender for which there are ATSI identifying offenders.

3.3 The computer generated random selection will then allocate places. That selection will allocate a minimum of one place to an ATSI identifying offender in each gender for which there are ATSI identifying offenders.

4.1 The Registrar will notify the referring Court if an applicant has been accepted, and request that Court to remand the applicant to the Drug Court on a specified date within the next week.

5.1 The Drug Court will not accept an applicant who is not selected in accordance with clause 2 or 3.

5.2 The Registrar will notify the referring Court if an applicant has been unsuccessful in a ballot, or if the applicant’s referral has been deferred.

5.3 An applicant who was not selected in a ballot will not be placed in a subsequent ballot unless the applicant is referred to the Drug Court in respect of an offence other than one related to the unsuccessful ballot.

6.1 The Drug Court acknowledges that a drug-addicted person may need many episodes of treatment to achieve long-term recovery.

6.2 As the resources of the Drug Court are limited, preference will be given to applicants who have not been Drug Court participants previously.

6.3 An applicant who has previously been a Drug Court participant is not an appropriate person for a Drug Court program if it is less than three years since final sentence was imposed in relation to the participant’s last Drug Court program, or if it is less than three years since the completion of the non-parole period of any final sentence that was imposed (not suspended), whichever is the later.

7.1 To take part in a Drug Court program, the Drug Court must be satisfied that, having regard to the person’s antecedents, it would be appropriate for the person to participate in a Drug Court program⁴.

7.2 From time to time the Drug Court conducts hearings and makes determinations as to whether individuals are appropriate for a Drug Court Program.

7.3 If an applicant referred to the Drug Court has, within two years of the date of referral, been found to not be an appropriate person under s 7A(2) [or the previous section, s 7(2)], the applicant is not an appropriate person for a Drug Court program, and the Registrar will notify the referring Court that the applicant has not been accepted.