Policy 10: Offences Committed by Participants
Last Reviewed March 2007
1. Purposes of Policy
1.1 To outline an appropriate response to offences committed by participants, with a view to protecting the public and maintaining public confidence in the Drug Court.
1.2 To reinforce the requirement of participants on a Drug Court program to remain of good behaviour.
2. Definitions
| Act | means the Drug Court Act 1998. |
| Case manager | means a Community Offender Service officer assigned to a participant. |
| 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 Legal Aid Commission (LAC) solicitor, the solicitor from the Office of the Director of Public Prosecutions (ODPP), the Police Prosecutor, the Community Offender Service coordinator and the Clinical Nurse Consultant who are attached to the Drug Court, and/or the alternate for each. |
| COS | means the Community Offender Service. |
| Participant | means a “drug offender” as defined in the Drug Court Act 1998. |
top of page 3. Policy
3.1. Undertaking to be of good behaviour
3.1.1 At the commencement of his or her Drug Court program, each participant is to make the following undertakings, amongst others, to the Court:
“I must be of good behaviour. I must commit no criminal offence.
I must inform the Drug Court team if I am charged with a crime, or receive a Court Attendance Notice (or any other court process) alleging that I have committed a crime.
I must be honest and not attempt to deceive the Drug Court or any member of the Drug Court team, my treatment provider or Case Manager.
I must report any breach of my program at the first opportunity I have to do so to my Case Manager, treatment provider and the Drug Court.”
3.1.2 Section 10 of the Act1 empowers the Court to act if satisfied that an offender has failed to comply with his or her program. Section 10(2) provides that it is a breach of program to be charged before a court with one of the offences mentioned in s 5(2) - eg violent conduct, sexual assault or strictly indictable supply of drugs.
3.2. Procedure on notification of an offence to the Court
3.2.1 When informed that a participant has been charged with an offence, the Court will ask the Legal Aid solicitor to advise the court if the participant intends to:
- admit or deny that the charge has been preferred
- admit or deny that the offence has been committed
- ask that the charge be dealt with at the Drug Court or elsewhere.
3.2.2 If the participant intends to plead guilty, the Legal Aid solicitor should advise the Drug Court Police Prosecutor by email or in writing. The Drug Court Police Prosecutor will then arrange for the new charge/s to be brought before the Drug Court on the participant’s next court day.
3.2.3 The Court will conduct whatever inquiry is necessary to determine on the balance of probabilities whether the participant has failed to comply with his or her program because of the commission of, or being charged before a court with an offence.
3.2.4 When satisfied that a participant has failed to comply with his or her program because of the commission of, or being charged before a court with, an offence
- Referred to in s 5(2), or
- involving serious harm or the risk of serious harm to a member of the community
- the repetition of a serious offence of a similar nature to an offence for which the participant was referred to the Drug Court
the Court will conduct a hearing to consider the question of “unacceptable risk” to the community of re-offending.
3.2.5 When satisfied that a participant has failed to comply with his or her program because of the commission of an offence other than an offence mentioned in 3.2.3 above, the Court, on its own motion, or on application of a member of the Drug Court Team, may conduct a hearing to consider the question of “unacceptable risk” under s10 (1)(b).
3.2.6 While awaiting an “unacceptable risk” hearing the Court may either
- refuse bail on the fresh charge,
- require the participant to be held in custody serving any sanctions, or
- allow the participant to continue his or her program, either unchanged, or with added conditions (such as more intensive supervision).
3.3. Sanction proceedings for breach of program by commission of criminal offence
3.3.1 The imposition of a sanction where a Drug Court Program has been breached by the commission of an offence does not create a situation where the law of “double jeopardy” would prevent the subsequent imposition of a penalty at law for the offence.ii See Crown Solicitor’s advising. The Court does not regard a decision in sanction proceedings to be a “decision of a court in proceedings for a criminal offence”.iii See Crimes (Administration of Sentences) Act 1999 s.63 relating to correctional centre offences.
3.3.2 Generally, the Court will conduct sanction proceedings as soon as possible after the commission of any offence committed on a program.
3.4 Special Conditions
3.5.1 The commission of an offence by a participant is a serious breach of conditional liberty.
3.5.2 Section 15(3) of the Act enables the Drug Court to impose a consecutive sentence for any offence committed by a person whilst on a program.
3.5.3 In sentencing a person following the termination of a program the Court is required to take into consideration the nature of the person’s participation on the program and any sanctions imposed on the participant during the program.iv Drug Court Act 1998 s.12(2)
3.5.4 The Court will ordinarily backdate the final sentence to reflect custodial sanctions served, and will take other forms of sanction into consideration.
4. Arrest Procedures for Participants
4.1 Participants may be wanted by police officers for offences committed on program, or for offences committed prior to commencing the program. Where possible, contact with the participant in relation to being wanted by police for questioning will be made through Legal Aid.
4.1.2 If any Drug Court Team member becomes aware that police are seeking contact with a participant, then the Drug Court Prosecutor and Legal Aid are to be notified as soon as possible.
4.2. Arrest for Pre-Program Offences
4.2.1 The Drug Court Prosecutor is to take steps to encourage police to notify the Drug Court Prosecutor when a Drug Court Participant is wanted by police. Arrests for ‘pre-program’ matters may jeopardise the progress of a participant’s treatment plan, and can result in missed pharmacotherapy dosing or other appointments. For this reason, it is appropriate for the Drug Court Team, in certain circumstances, to advocate that participants NOT be arrested by police but be dealt with as outlined in paragraphs 4.2.2 to 4.3.3.
4.2.2 Upon notification by police, the Drug Court Prosecutor will notify Legal Aid of the details of the allegations and possible charges, the informant’s name and station.
4.2.3 Legal Aid will obtain instructions as to whether the participant wishes to be interviewed by police.
4.2.4 Where the participant does not wish to be interviewed, or wishes to record a refusal to be interviewed, Legal Aid will provide written confirmation of this to the Drug Court Prosecutor and the informant.
4.2.5 In the above circumstances, the Drug Court Prosecutor will contact the informant and recommend proceeding by way of Future Court Attendance Notice (FCAN).
4.2.6 If this recommendation is accepted, an appointment will be made for the participants to attend at the informants police station for service of the FCAN on the participant. The time of this appointment will be agreed after consultation between the informant, the Drug Court Prosecutor, the Legal Aid Solicitor and the participant.
4.2.7 Where the participant does wish to attend to be interviewed by police, an appointment will be made for the participant’s attendance at the informant’s police station. The time of this appointment will be agreed after consultation between the informant, the Drug Court Prosecutor, the Legal Aid Solicitor and the participant.
4.3. Arrest for On Program Offences
4.3.1 If the Drug Court Prosecutor becomes aware that a participant is wanted by police for an “on program” offence, the Drug Court Prosecutor may recommend to the police informant that the procedure outlined in 4.2 be followed (i.e. the recommended procedure for pre-program allegations) as an alternative to arrest.
4.3.2. When making such a recommendation, the Drug Court Prosecutor will take into consideration the seriousness of the alleged offence, the participant’s current progress on the program, the likelihood of bail, and the risk of contamination of the investigation.
4.3.3 If a Drug Court participant is arrested or charged with an offence, without prior notification to the Drug Court Prosecutor, either for an on program or pre-program offence, the Drug Court Prosecutor will notify Legal Aid immediately if possible, and will notify the Drug Court Team at the next Team Meeting.
1"10. Proceedings for non-compliance with program
(1) If it is satisfied, on the balance of probabilities, that a drug offender has failed to comply with his or her program, the Drug Court:
(a) may, in accordance with the program, impose any one or more of the sanctions specified in the program as sanctions that the Court may impose on the drug offender, or
(b) if it is also satisfied, on the balance of probabilities, that the offender is unlikely to make any further progress in the program or that the offender’s further participation in the program poses an unacceptable risk to the community that the person may re-offend --may decide to terminate the program.“
ii See Crown Solicitor’s advising.
iii See Crimes (Administration of Sentences) Act 1999 s.63 relating to correctional centre offences.
iv Drug Court Act 1998 s.12(2)
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