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LEGALDATE

Volume 34, Issue 2 2022

LEGALDATE

Volume 34, Issue 2, 2022

Drug courts and their role in dealing with drug addiction and reducing crime

Joe Alvaro, Legal Studies Teacher

Introduction

Drug use can cause people to commit crimes they would not otherwise commit. Drugs cause people to commit offences against the person. 70 per cent of prisoners identify drugs and/or alcohol as the reason they are offended, and most female prisoners have a history of injecting drug use (Dive, 2019). In 2009-10, the Drug Use Monitoring in Australia program found that more than 70 per cent of those detained by police for violent assaults in Kings Cross (Sydney, Australia) tested positive to at least one drug type, with opiates the most commonly detected (The Noffs Team, 2017). Drugs can also cause people to commit offences against property. Illicit drugs such as methamphetamine and heroin have been associated with offences against property. Those dependent on drugs will often engage in theft to obtain money to purchase drugs. A survey of police detainees found regular users of both amphetamine and heroin self-reported violent and property offences at a rate more than five times higher than prisoners with no history of frequent drug use (Noffs Team, 2017). Therefore, if people addicted to drugs can receive help to stop using drugs, it can be argued that there would be less crime in society. Drug courts have had some success in helping people quit drugs.

What is a drug court?

A drug court is a specialist court that deals with offenders dependent on drugs. Drug courts emerged because traditional criminal justice approaches were failing to provide long-term solutions to the problem of drug use and its contribution to criminal activity. Drug Courts aim to assist drug-dependent offenders in overcoming both their drug dependence and their criminal offending by diverting them from incarceration (prison) into treatment programs for their addiction. These treatment programs would not be accessible if these offenders went to prison, resulting in offenders being released from prison still addicted to drugs and committing more crimes.

Drug Court of New South Wales (NSW)

There have been drug courts established in various states in Australia and worldwide. The Drug Court of NSW has been in operation since 1999, and this was the first drug court to be established in Australia. Offenders are referred to the Drug Court of NSW by the Local or District Court if eligible.

The Drug Court of NSW operates under the Drug Court Act 1998 (NSW). Section 3 of the Act sets out the objectives the Drug Court seeks to achieve. These are:

  • to reduce the drug dependency of eligible persons, and
  • to promote the reintegration of such drug dependent persons into the community, and
  • to minimise the need for such drug dependent persons to resort to criminal activity to support their drug dependencies.

Where is the Drug Court of NSW?

There are three Drug Courts in NSW – Parramatta, Toronto and the Sydney Central Business District.

Who is eligible?

A person charged with a summary offence where violence was involved will not be eligible to attend the Drug Court of NSW.

Other people not eligible include people charged with a sexual offence and people with a mental illness that would prevent them from successfully participating in the program.

Drug Court of NSW Case

R v Kyle BRUCE [2010] NSWDRGC 1

The issue, in this case, was the meaning of ‘eligible person’ and whether an offender charged with the offence of breaking and entering and stealing in a company has been charged with an offence involving violent conduct when the facts reveal he tackled the homeowner to the ground in an attempt to flee the house.

Mr Kyle Bruce was an applicant to undertake a Drug Court Program. He had been charged with 17 offences, including 15 breaks and enter offences of various descriptions, 12 of which were committed in circumstances of aggravation. The circumstance of aggravation alleged in all such matters is that the offence was committed in the company of another person.

Mr Bruce indicated a plea of guilty to all 17 matters in the Local Court when Mr Bruce sought access to a Drug Court opportunity, and the matters were then adjourned to the Drug Court. He confirmed those guilty pleas before the Drug Court, which recorded convictions. Mr Bruce was 19 years old, and, whilst he had a juvenile record, he had never been dealt with as an adult. He had extensive family support and otherwise appeared to be a likely candidate for a Drug Court program.

An issue was raised by the Crown as to his eligibility for a Drug Court program. Eligibility for a Drug Court program is defined in Section 5 of the Drug Court Act 1998. Section 5(2)(b) provides that a person is not an eligible person if the person is ‘charged with … an offence involving violent conduct or sexual assault.’ The issue arose because of what was called the ‘Robbie Crescent, Carlingford offence’, which involved an aspect of violence.

The judge said there is no doubt that the elements of the offence with which Mr Kyle had been charged (that is break and enter and steal, committed in the aggravating circumstance of being in a company) were not an offence in which there was an element of violent conduct, except perhaps towards the broken door. Parliament specifically expected the Drug Court to deal with matters of break and enter and stealing.

The judge went on to say:
‘Ms Broomfield has also raised the Crown’s concerns that to find Mr Bruce to be an eligible person may open the floodgates, whereby undesirable offenders gain access to the program. I cannot agree. One would and can expect that if an offender commits crimes, which involve significant or concerning violence, then they will be charged with offences with elements, which reflect that violence. The charges thereby laid will render the person ineligible.’

The judge’s decision was that Mr Bruce was an eligible person and thus he was allowed to undertake the drug court program.

From: https://www.caselaw.nsw.gov.au/decision/549f76703004262463a8414b
Accessed: March 2022

How does the Drug Court of NSW work?

The Drug Court of NSW aims to help the offender change from being addicted to drugs and committing crimes to fund their drug habit to a life free of drugs and crime.

If an offender is referred to the Drug Court of NSW from the Local Court and District Court, they spend a minimum of two weeks in custody where they cannot use drugs and where their treatment plan is prepared.

After the two weeks are over, the offender receives an initial sentence for the charges referred to the Drug Court of NSW. If the offender agrees to the treatment plan prepared, the sentence is suspended. This means that instead of going to prison, the offender follows the treatment plan to go home at night and engage in paid employment.

The treatment plan involves:

  • attending court each week and meeting with the judge, who will check that the treatment plan is being followed
  • supervised drug testing (urinalysis) three times per week
  • weekly home visits by a Probation and Parole Officer
  • weekly counselling and group work
  • pharmacotherapy (medication) if prescribed.


The program can be completed in a minimum of 12 months.

The main aim of the Drug Court of NSW is to reduce a person’s dependency on drugs, which will, in turn, reduce the person’s need to resort to criminal activity to support their drug addiction. It may also result in a person having the ability to function as a law-abiding citizen, thereby resulting in a safer community.

High demand for the program and the use of a ballot

There are more applicants for the drug court program compared to available places. To manage the level of demand, a computerised ballot is conducted. This means that only some of the eligible offenders are successful on the ballot and given a place in the program. Offenders not successful in the ballot are sent back to the Local Court or District Court for sentencing to a term of imprisonment without help to quit their drug addiction.

Costs of not enough places on the drug court program

In 2017, 96 suitable offenders were unsuccessful in the ballots conducted. Between them, they had committed 938 crimes. The 96 referred offenders who were unsuccessful in the ballot were sentenced in the Local Court or the District Court (either at first instance or on appeal) to 561 months as their non-parole periods. Considering the average daily cost of adult incarceration of $172.80, those sentences cost the community $2.91 million. Additionally, 96 months of Intensive Corrections Orders were imposed in lieu of full-time custody, which carries an actual cost on Corrective Services calculations of $62,000.

There are many, many more costs involved. The Local Court and District Courts had to sentence all 96 offenders at least once. A surprisingly high number (36 participants or 37.5%) of the offenders dealt with in the Local Court appealed the sentence, leading to a second sentencing task in District Court. So, there are even duplicated costs regarding judges and magistrates, prosecutors and legal aid lawyers, and registry and administration costs. To finalise all matters also led to delay – from 2 to 10 months from the return to the referring court.

From: Dive, R., 2019. NSW Drug Court Submissions to Special Commission of Inquiry into the Drug Ice
https://www.drugcourt.nsw.gov.au/drug-court/publications.html

Accessed: March 2022

What happens if a person goes back to using drugs while on the drug court program?

Breaches of the program are dealt with by way of sanctions (punishment), which may include increased supervision and drug testing or prison time where the treatment plan will be reviewed.

The most serious form of punishment is termination from the program, with the court’s initial sentence of full-time imprisonment being imposed on the offender.

What happens if a person successfully completes the program?

When a person successfully completes the program, the Drug Court must reconsider the initial sentence. Usually, if the program has been completed successfully, the revised sentence is a good behaviour bond. The Court awards a Certificate of Graduation to participants who have successfully completed the program (Dive, 2017).

Evaluating the effectiveness of the Drug Court of NSW
ProsCons
* Traditionally drug offenders have been sentenced to prison but have not received the assistance they have needed to change and quit their drug habit. Once they are released, they have committed more crimes to fund their drug habit. The Drug Court of NSW is capable of a different sentence, which results in offenders quitting their drug habits and not committing any more crimes.

* In arguing for more drug courts, Judge Roger Dive has said that they reduce ‘the real impact of addiction and crime on ordinary citizens. Fewer homes and businesses will be broken into, a wide variety of fraud offences will be reduced, and fewer cars will be damaged for just a few coins in the glove box.’ (Dive, 2019).

* Not everyone is eligible for the Drug Court of NSW. The court investigates criminal history and the risk to the community in determining eligibility, thus balancing the rights of victims, offenders and society.

* The Drug Court of NSW is cheaper than imprisoning offenders. For example, in 2004, there were 55 successful Drug Court of NSW participants who did not go to prison. They had an average initial sentence with a non-parole period of 15.5 months. With the daily cost of imprisonment being $189 per day, those participants would have spent a total of 71 years in prison, at a cost to the community of approximately $4.8 million (Dive, 2006).

* Less crime is committed while offenders are on the program and afterwards if they graduate.

* Lower recidivism rates (the rate at which offenders commit crimes after being released from prison).

* The program can keep families together. For example, a program participant abstained from illicit drugs during her pregnancy, and consequently her baby did not bear any consequences of her addictions during that pregnancy. After proceedings in the Children’s Court, the participant was allowed to have the long term care of this, her seventh child. None of her other children had been allowed to remain in her care (Dive, 2006).

* The court is a good example of the justice system working together with the health system to achieve long term change for offenders.
* Not all people who begin their treatment plan are successful and some end up not graduating from the program.

* The level of demand for places on the program has steadily increased, yet the program has not expanded enough to keep up with this demand. A person may be eligible for the program but they are returned to the referring Local or District Court because of a lack of places on the program and are imprisoned instead.

* The computerized ballot used to allocate places on the program is unfair for those who do not get selected through this process. They end up in prison without support to deal with their drug addiction. Is it right for justice to be based on a process based on the luck of the draw? Some other drug courts use a waiting list rather than a lottery system.

* The computerized ballot process can produce different outcomes for couples who have committed crimes together. So one of a pair may get a chance to stay out of custody and recover through the drug court program, and their partner is imprisoned. These different outcomes can have negative effects on families.

* If an offender has failed the program in the past, they will not be given another opportunity to undertake the program if they return to court in the future and need to be sentenced. Judge Roger Dive argues that ‘treatment theory tells us very clearly, as would common sense, that a drug-addicted offender may well need more than one episode or opportunity to grasp recovery. It may be that the previous participant was young, chaotic and perhaps foolish on the last occasion, and desperately wants assistance now. So denying a second drug court program opportunity can be tragic for the offender and a poor result for the community.’ (Dive, 2019).

* There is no appeal against a decision taken by the Drug Court to refuse entry into the program.

* The court is open to abuse because an offender could fake a drug addiction to avoid time in prison – ‘drug rort’ rather than a drug court.

* There are not enough drug courts in Australia. For example, in NSW there are only three drug courts, which cannot meet the level of demand.

* Access to the court will be denied to people who live in a Local Government Area, which is not within the catchment area of the court. Access is an aspect of justice.

* Drug courts encourage people to break the law because offenders addicted to drugs know they will receive treatment for their drug addiction that they would not be able to otherwise afford.

* Drug courts cause offenders to receive a lighter sentence.

Conclusion

The drug issue is complex and there are no easy solutions to the problem of drugs in society. Courts like the Drug Court of NSW cannot be used successfully in all cases involving offenders who are addicted to drugs (e.g. violent offenders or offenders who are unable to quit their drug addiction). However, they have been proven to be effective for a certain group of drug addicted offenders who end up receiving the help they need to quit drugs and their associated criminal behaviour. In turn the courts improve community safety as well, as less drug related crimes are committed. This would not be possible through traditional court processes.

Student activities

Multiple Choice Questions

1. Which of the following courts are specialist courts?

a) Supreme Court, High Court, Alternative Dispute Resolution
b) Local Court, Land and Environment Court, High Court
c) Drug Court of NSW, Children’s Court, Land and Environment Court
d) Single Issue Court, District Court, High Court.

2. A drug court deals with:

a) less serious drug-using offenders through programs including frequent drug testing
b) serious drug-using offenders through programs including drug counselling
c) indictable offences focusing on incarceration as punishment
d) all drug-related cases to allow the other courts to have time to hear other types of cases.

3. Which purpose of punishment is a drug court mainly concerned with?

a) Rehabilitation
b) Retribution
c) Incapacitation
d) Repair

4. Statement A: All offenders who attend the Drug Court of NSW avoid time in prison.

Statement B: Offenders who have engaged in violent crimes are not eligible to have their case heard in the Drug Court of NSW.

a) Both statements are true
b) Both statements are false
c) Statement A is false, and Statement B is true
d) Statement A is true, and Statement B is false.

5. John was participating in a drug court program. The program has come to an end.

What will be the next step for John?

a) John will go to prison to finish his sentence
b) John will be placed on a good behaviour bond
c) John will be able to work under supervision from the Drug Court of NSW.
d) the court will reconsider John’s initial sentence.

6. Julie is 21 years old, dependent on the use of prohibited drugs and has been charged with a break and enter offence. She has pleaded not guilty.

Why would Julie not be eligible to have her case heard at the Drug Court of NSW?

a) Her age
b) She is unlikely to go to prison for the crime she has been charged with
c) She has pleaded not guilty
d) Her drug problem was not connected to the offence she was charged with.

7. Which of the following could be considered a limitation of the Drug Court of NSW?

a) Accessing the court is a problem in terms of where people live.
b) The court aims to help offenders quit their drug addiction.
c) The court is a specialist court
d) The court considers the offender’s education needs and employment needs.

8. Mario has a history of drug use and has been charged with a drug offence in NSW. His lawyer gives him the following information:

  • That his case will be heard in the Drug Court of NSW
  • That he should show a willingness to quit his drug addiction.


Why are some of this information incorrect?

a) The trial must be heard before a jury, and there are no juries in the Drug Court of NSW
b) If Mario’s name is not selected through the ballot system, his case will not be heard in the Drug Court of NSW
c) Mario needs to go to prison first before being considered for a drug court program
d) A willingness to quit his drug addiction is not enough. Mario must be drug-free for three months before he can be considered for the drug court program

9. What is the name of the act that has been made by parliament for the Drug Court of NSW to interpret?

a) Young Offenders Act 1997 (NSW)
b) Drug Court Act 1998 (NSW)
c) Victims Rights Act 1996 (NSW)
d) Free of Drugs Act 1998 (NSW).

10. The Drug Court of NSW aims to promote the ­­­­­­­­­­­­­____________ of drug-dependent persons into the community.

a) segregation
b) withdrawal
c) movement
d) Reintegration

Short answer questions

1. Identify the TWO courts that can refer cases to the Drug Court of NSW.

2. Identify how long the Drug Court of NSW program lasts.

3. Explain the link between drug use and crime.

4. Describe the function of the Drug Court of NSW.

5. Explain why a computerised ballot is used in the Drug Court of NSW.

6. a) Who is eligible for the Drug Court of NSW programs?

    b) Who is not eligible for the Drug Court of NSW programs?

7. Explain how the Drug Court of NSW operates.

8. Explain the benefits for an offender who completes the drug court program.

9. Examine the issue of compliance and non – compliance concerning the Drug Court of NSW.

10. Referring to the R v Kyle Bruce (2010) case, answer the following questions:

a) Describe what happened (who? when? where? how? why?).
b) Outline the legal issues.
c) Do you agree with the judge’s decision? Explain the reasons for your answer.
d) Provide a summary of the case using five keywords.

1._____________ , 2. ______________, 3. ________________, 4._____________,

  1. ______________.

Research Activities

1. a) Watch the A Current Affair television story –Inside Drug Court (Date broadcast: 3 October 2016). The video will take you inside the Drug Court of NSW.

It can be found on the 9Now website below. You may need to create a free account to sign in if you do not have log in details.

https://www.9now.com.au/a-current-affair/2016/clip-citw1wqvd004r0glp4qii1pvp

The video is also available on ClickView.

https://online.clickview.com.au/exchange/series/6977/a-current affair/videos/33060212/drug-court

    b) Write a summary of the story using 10 points.

2. Write an information report (at least one A4 page in length) about the Drug Court of NSW. In your information report, answer the following questions:

a) What is it?
b) When did it begin?
c) Where does it operate?
d) Why does it exist?
e) How does it work?

3. Thinking about the Drug Court of NSW, copy the following PMI chart in your notes and complete it.

* P = pluses (positive elements)

* M = minuses (negative elements)

* I = interesting (elements that cannot be classified precisely as positive or negative) or implications (potential outcomes)

PMI Chart – Drug Court of NSW
PMI

Extended response questions

1. ‘The drug court program should be expanded instead of building more prisons.’

Using your knowledge concerning the above statement, discuss whether government funding should go to more drug courts or more prisons.

2 ‘At the Drug Court, we break that cycle of crime and drugs and provide participants with opportunities to get treatment, stabilise their lives, and get back into education or employment.’ Judge Roger Dive, 2017

To what extent do you agree with the above statement? Discuss.

3. Evaluate the effectiveness of drug courts in achieving justice for victims, offenders and society.

Answers to multiple-choice questions

1. c 2. a 3. a   4. c   5. d   6. c   7. a  8. b   9. b  10. d.

References

Dive, R, , 2019. NSW Drug Court Submissions to Special Commission of Inquiry into the Drug Ice

https://www.drugcourt.nsw.gov.au/drug-court/publications.html

Accessed: March, 2022.

Dive, R. , 2017.  Justice and Treatment – Drug Court of NSW. 2017 Economics and Business Educators NSW Legal Update Conference, Sydney, 28 November 2017.

Dive, R. , 2006. Sentencing Drug Offenders. Principles, Perspectives and Possibilities Conference, Canberra, 10-12 February 2006.

https://www.drugcourt.nsw.gov.au/drug-court/publications.html

Accessed: March, 2022.

NSW Government, 2022. Drug Court of NSW

https://www.drugcourt.nsw.gov.au/

Accessed: March, 2022.

The Noffs Team, 2017. Does drug use cause crime? The Ted Noffs Foundation.

https://noffs.org.au/blog/does-drug-use-cause-violence/

Accessed: March, 2022

 

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