DAJ.0037.0002.7689
*
Northern
Territory
Governmenl
DEPARTMENT OF
THE ATTORNEY.GENERAL AND JUSTICE
rfi SIER EtfEntt{t('s (}FFtcE
Jo¡ 0¡ tf$ *,Jts€
TO:
ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
FROM:
CHIEF EXECUTIVE
RE
SUBSTANCE MISUSE ASSESSMENT
AND
Ministerial
REFERRAL
FOR TREATMENT COURT
DATE:
1 OcT
2012
REF:
DC1210165-CSIO
20121
CTSC 12-19
ISSUE:
To provide a briefing on the Substance Misuse Assessment and Referral for
Treatment (S MART) Court.
TIMING:
Routine
BACKGROUND:
You have requested an outline of the operations of the SMART Court since its
inception.
The SMART Court commenced on 1 July 2011 and currently sits at Danruin,
Alice Springs and Nhulunbuy. lt is intended that sittings will commence in
Katherine and Tennant Creek in the future. But this is specifically dependant on
sufficient funding and treatment serv¡ces being available for those places.
The SMART Court is fundamentally based upon the guiding principles of
therapeutic jurisprudence, and accordingly requires an intensive approach by
the SMART Court Team which is comprised of a Magistrate, defence lawyer,
police prosecutor, clinician and community corrections officer. Generally each
defendant is required to attend Court fortnightly for review, at which time
attention is focused on their required drug and urinalysis testing, commitment to
the program and compliance with respective Court orders. SMART Court
orders last between six and 12 months and reviews continue throughout that
period.
Danryin, Alice Springs and Nhulunbuy fall within the
Department of the Attorney-General and Justice and are all qualified health care
professionals. Some carry post graduate qualifications, and all are required to
have at least an undergraduate degree in a related field, coupled with significant
The Clinicians at
relevant experience. All Clinicians hold a statutory appointment as a
Court Clinician. Clinical services in Katherine are currently outsourced to the
Commonwealth Rehabilitation Service which provides a service to the Alcohol
and Other Drugs Tribunal only.
DAJ.0037.0002.7690
2
CURRENT SITUATION:
The budgeted staffing level for whole of Territory for 12113 is 10.5 FTE including
6.7 clinicians, two SMART Court officers and one project coordinator.
The budget for SMART for 12113 was approved at $2.3 million which included
$310,000 from the Commonwealth Government under the National lllicit Drug
Diversion Strategy. Unfortunately this funding was withdrawn by the
Department of Health after the budget decision was announced.
Since its inception there have been:
214
134
43
34
57
defendants referred into SMART Court;
defendants accepted and SMART Order made;
defendants graduated from SMART Court;
defendants discontinued from SMART Court; and
defendants who remain subject to SMART Orders and have not yet
graduated.
59% of all referrals were lndigenous; and
85% of all referrals were male.
Only a very small proportion of referrals are youths. There are limited treatment
providers or facilities for youths with alcohol or drug misuse problems, making
the program unsuitable in most cases.
The below table represents the proportion of primary and secondary substances
misused by offenders who are referred:
Primary
Substance
Secondary
Substance
Alcohol
Cannabis
Amphetamines
Opiates
BZD
58%
14.5%
20%
7.5%
NIL
9%
34.4%
6%
NIL
1.5%
The Key Performance lndicators for the program include
.
.
.
.
.
the number of persons referred for treatment;
the number of SMART Orders made (by person);
whether the primary treatment component was completed;
the number of graduations; and
the number of graduates who re-offended within two years of graduation
Only one graduate has re-offended. That particular individual was sentenced to
a term of imprisonment.
There are many success stories within the SMART Court. Many participants
have overcome years of drug and alcohol dependency, homelessness, abuse
and other trauma.
DAJ.0037.0002.7691
3
The Chief Magistrate is a very strong advocate for the program and was highly
influential in its establishment. Her knowledge of therapeutic programs is based
on many years experience with similar programs in other Australian
jurisdictions.
RECOMMENDATION:
It is recommended that you note this briefing.
Action Officer:
ve Director:
Daniel McGregor
Tel: 96553
Chris Cox
HANAHAN
NOTED
INK
oßq6
DAJ.0037.0002.7692
MTNISTERIAL BRIEFING
DRUG AND ALCOHOL REHABILTTATTVE COURTS
Background
Rehabilitative 'drug' courts were initiated in the state of Florida, United States in
1989, and have expanded to all other US jurisdictions as a way of dealing primarily
with non-violent drug offenders. ln Australia, New South Wales establish the first
dedicated "drug courts" in 1999. Since that time, pre-court diversionary programs as
well as judicial based therapeutic programs have been established in Queensland,
Victoria, South Australia, Western Australia, and both mainland Territories.
What are Druq Gourt P roorams?
ln Australia, two types of programs operate. ln larger jurisdictions both streams are
offered, with referral based on the seriousness of offendíng.
1.
2.
Bail based diversionary programs such as CREDIT (Vic) or MERIT (NSW)
enable drug affected offenders to be diverted out of the criminaljustice
system, or have their sentences significantly reduced as a result of successful
completion of a substance misuse rehabilitation and treatment program.
Dedicated 'drug courts' take the form of an intensive team-driven program,
operating from within a court setting, but involving health professionals and
counsellors as well as judicial officers, legal practitioners, police and
correctional services staff. Participation is predicated on a plea of guilty to
criminal offending by the offender, who then completes a course of community
based treatment and rehabilitation, prior to final sentence. Successful
completion of the program without further criminal activity significantly
militates against the imposition of a sentence of actual imprisonment.
Drug Courts can operate for adults and children. In July 2012 the NSW government
closed the State's Youth Drug and Alcohol Court. However youth drug courts still
operate in the ACT, WA and the NT.
Whv have them?
a
a
a
It is known that many persons within the criminaljustice system have
concurrent substance misuse addiction, which caUSeS, contributes or
exacerbates their criminal activity.
Diversion from the criminaljustice system into treatment shifts the focus from
the offenders, and their actions, to the underfying causes of their behaviour.
Drug Courts are often used as a final alternative for repeat offenders prior to
them receiving full{ime and protracted incarceration, which is expensive.
DAJ.0037.0002.7693
Do they work?
o
a
a
a
lndicators are that following successful completion of a drug court program,
participants reoffend at lower rates (between 13-15o/o) than participants in the
mainstream criminal justice process.
ln addition, the time until recontact with the criminaljustice system for
successful drug court participants is longer in comparison with those who
have not participated in the program.
For example, an evaluation of the North Queensland Drug Court program
since its inception in November 20O2, revealed that by December 2004, 52o/o
of participants who had completed the program had made no further contact
with the criminaljustice system - Íncluding police apprehension where no
further action was taken. Of the control group who had not completed the
program, 53% had reoffended during the same period.r
Cost benefit analyses indicate these programs are no more expensíve, and
may sometimes be cheaper, than prison.
lmproved health and wellbeing outcomes and better social function are also
better for graduates of rehabilitatíve court schemes. This represents savings
across a range of other government services.
The future of Therapeutic Justice
Meta-analysis of a number of different drug courts has revealed significant variation
in the success of different programs. While there are lots of programs, and lots of
studíes and evaluations, most of which reveal at least a moderate degree of
success, criticism is emerging about weak data sources impeding successful and
accurate assessment of drug courts as a rehabilitative tool. Comprehensive data
capture is therefore a critical component of future evaluation.
New research is now supportive of a more general intervention approach, as
opposed to highly specialised court systems such as'drug' courts. This is because
they are more accessible to a greater number of participants, offer greater early
intervention strategies, and offer greater savings on resources as they do not require
separate staff or administrative structures.
t Payne J, Final Report on North
Queensland Drug Court, Technical and Background Paper No 17,
Australian lnstitute of Criminology, Canberra, 20O5.
DAJ.0037.0002.7694
)
,',4¿4,*'tit 2l¡
f)
t
news
.GOm.du
Media lockout as poster boy before courts
MEAGAN
DILLON I March 13th,2012
Dale Talbot was the poder boy of the SMART couft program laú month but ¡s now back before the courts MagiSrate Hilary Hannam
closed the court to the media
first graduate of a new drug and alcohol misuse court program landed himself back in court yesterday after
allegedly breaching his order.
But Chief Magistrate Hilary Hannam - who is an epert in therapeutic jurisprudence and an avid advccate for the
program - refused to let the media corer his case.
THE
She did not give a reason for closing the court.
READ THIS BEFORE COMMENTING: lt is considered contempt of court to criticise an individual magistrate. You are
free to comment on the justice system as a whole so keep your messages general.
ButundertheAlcohol Reform (Substance MisuseAssessmentand Referral forTreatmentCourt) Act2O11,a
magistrate can close the court if it is in the best interests of the offender.
Dan¡yin Magistrates Court deputydirector Sue Ahmat said: "The magistrate has declined to make a comment."
Dale Talbot, 29, was cause for celebration last
court program.
m
onth when he became the first person to successfully com plete the
He had been cannabis and metham phetam ine dependant for a decade and had spent nine of the past 1 0 years in
pnson.
DAJ.0037.0002.7695
But the new father had been clean during the six-month
program which orders recidivist drug and alcohol-related
offenders to do rehabilitation on top of being punished for
their crime.
During the ceremony, Ms Hannam said itwas a "\€ry
special day''for Mr Talbot, who was one of the first people
to be admitted to the program, and the S[\4ART court.
Mr Talbot has now been charged with breaching a court
order.
This is not the first time journalists have been restricted
from reporting on court proceedings that are before Ms
Hannam.
The chief magistrate tried to close the Juvenile Justice
Court when six detainees were charged after an alleged
racial fight at a Darwin detention centre in March 201 1.
She relayed a message to the media stating they had no
right to ask for the court to be kept open so theycould report
on the high-profile case.
But she agreed to allow court reporting after NT News and
ABC lawyers successfullyfought to keep the court open.
@
Nationwide News Pty Ltd
Hilary Hannam
DAJ.0037.0002.7696
IABC News
Anger as NSW axes youth drug court
7.30
By Adam Harvey
Updated Wed Jul 4, 201 2
1
2:
27am,AESI
Legal experts are baffled by a NSW Governrnent decision to axe special youth court
that sent young offenders to counselling and rehab instead of iail.
The court was set up 12 years ago after a recommendation of the Drug Summit, but it was
closed down at short notice on [/onday.
The Government said the court's price tag was too much, but the decision has been met with
anger and confusion.
Hillary Hannam ran the court until she was appointed Chief Magistrate of the Northern Territory.
"About 20,21young people a year graduated from the program. I know for a fact that many of
them are now working productively, they're good members of the society," she told 7.30.
"A number of them even say, in the feedback I get to this day, that it was drug court that literally
saved their lives."
Ms Hannam says the court's hands-on approach is what made the difference.
"The biggest component that is missing from any other program is ongoing judicial
involvement. I used to have seen them 26,27,28 times, I knew them really well, and the
relationship that's formed between the judicial officer, the judge or the magistrate, and the
youth is the most important thing," she said.
"Some of these young people have never had someone in authority, never had a parent figure
who has been consistent and who genuinely cares about them."
She says the level of scrutiny was confronting.
"This was certainly not a soft option. You ask a young person going through the program how
they felt about having to come back to court every two weeks for 12 months," she said.
"Sometimes some of them sadly enough used to just say 'put me in custody, it will be easier,
I'll get it over with'.
"The brave ones who were courageous and genuinely wanted some assistance would come
back to court time and time again. They sometimes would have their bail revoked, it certainly
wasn't soft. But the thing is, it works."
DAJ.0037.0002.7697
It inspired
similar initiatives in other states, but after 12years the axe has fallen on the coutl
with no warning.
"[rly fears are that we've lost one of the only things that we know that works. lt is a retrograde
step," Ms Hannam said.
"The ACT only just started their youth and drug and alcohol court model. They based theirs on
ours. Nothing else has been proved to work like drug courts, and I think it is a tragic day for the
NSW community."
Each year about 120 people face the court. Around 20 of them made it through, at a cost of $4
million. The Government says that was too much.
Bob Debus was attorney-general in the Carr Labor government that set up the youth drug
court.
"lsuppose it's been cut because it's easy," he said.
"The fact is that it had been doing a fantastic job. The sort of work it's doing is the sort of work
that we have all believed is what you should do in order to get young people off the street and
get them back into a productive life."
NSW has the third worst rate of reoffending in the country, behind Western Australia and the
Northern Territory.
Attorney-General Greg Smith says he is trying to change this with reforms that have been wellreceived, even from the other side of politics.
"lsupport Greg Smith's general approach to rehabilitation," Mr Debus said.
"l think that's been a good thing. I'm just surprised that the abolition of this court seems to
contradict such an approach to the strategies of criminaljustice."
Advocates say the court is a lot cheaper than the alternative: long-term imprisonment.
"This is a fraction of the cost of the impact that those people will have on the system for the
rest of their lives, because statistically we know that if there's no intervention they have a very
high chance of spending the rest of their lives in custody," Ms Hannam said.
Those currently participating will be redirected into other drug and alcoholtreatment services.
Topics: courts-ancl-trials, drugs-and-substance-abuse, drug-education, drug-use, drug-offences,
youth, states-and-territories, nsw, australia
First posted Tue Jul 3, 2012 10:23pm AEST
DAJ.0037.0002.7698
SMART Court gets first graduates
ol2112
. . and first romance
-
Alice Springs News
Thefrcdon o.f lhe præs slill lumishes Ú¡at ehrk
gotcnutmtuhídt m mrctíhtliott hns suerbæn
upon
able to
Advertisirg About
t
s
Story
-Chimgo Trfutuw,
Arcfiiue Lêtter to the Editor Comnents Poka
SMART CouÉ gets first graduates ... and
first romance
Jobs from Alice SÞrinos News
By KIERAN FINNANE
Food and Beveraoe Assistant ¡,4anaoer I 4.5 Star Resort I
Alice Sprino Location
$50,000 - $55,000+
Froniline Hospitality Brisbane
It was an opportunlty to rernake hs life
Retail l\bnaqerent Opoortunities - Alice Sor¡nqs - AoDalel
Frontline Retail Darwin
560,000
¡nd she took it: she tum€d from regular
hear,l, drinking - of up to 30 mns of fuIl
strmgth bw in a sitting md this since
- to being sobø, taking on fulltime mrploymant, progressing in her
iob, looking after family, aspiring to
rent h6 own flat.
Erica Lowah wa.s one of three to
gr adrrate from the SMART Cou rt
p,rogram last Thursda),. The thræ are
the first in Alice Springs to complete the
Salesperson - Leadino telecomrnications brsnd - Alice
Snrinos
1987
Adveftising
'lleep (nol
llt 'lllc'Pool
'Ihi¡ Eummø
program sinceits introduction in July
last 1'sat.
SMART stmds for "Substmæ Mi*se
Asesnrmt and Refaral ftlr Treatrnenl', Sørtancing of offurders with sqious alcohol and/or dmg
problms is defared while they un dertake programs as orderql by the court. The programs are tailored to
individual needs but the bottom line Ls total abstinsrce.
kI^s Lorvah had been charged with high range clrink driving and driving while disqualifiel and these wse
not hs first rlrink driving offmces. By øtterinB the SMART Court prograrrL she wa-s givei a clrance to
avoid gaol time and to get hs life back on track.
A cake was brought into the m¡urt to cclebrate the achismmts of the graduates. Everyone wæ beoming.
The rrzual furrnâlities, alrady not gr€at in this courl, dropped away. I was wm allowed to get otlt my
pocket camua and takea map, with thequietly proud Ms Lowah agræing to have her photo publisherl.
Magistrate David Bamber ioked with graduate Beijamin Smith lhat hi-s was the first SMART Court
rorynnce while on the program he entereri ancl has reruined in ¿ relationship with a young woman who
is also a program partici¡rmt.
Mr Bamber reflected bridll, s¡ his s perio ce of this very differmt coutt. The l€gislãhon was introdu L'ed
qtrickly md hdd had little idæ of what his role would involve. Visiting a similar court in Nss South
WaleE he larnt that their mdn 'problenl was thal ¡reople wanted 1o keep oming back, to let the court
know how wdl they were doing. One NSW graduate had ernm brought his oneday-oL{ baby to show
thecourfs tmm.
Thestories reveal the inìportil€ of pcmnal rdationships in this court (in contrast to other courts where
the personal is suppresæcl). The rdationsh 1ps obviously h¿ve their bounc{aris but there is m obsetvable
genuine warmth betws the court's team and the participanls, especiaþ thoæ -not zurprisingly - who
respond wdl to the chmæthey'vebeer givør.
Lawy er for Ms Lowah, Libby Pør man, told the cÞu rt that h er dient sh oulcl be "congratu lated" for hc
"exanplary progresl' through the program Sheh ad not returned a single negative bmth tæt for the
cluration. Nor had there bæn any negative reports about her, for things like no t kerying åPPointments,
not complying with trætÍÞnt orders.
From day one shdd bem highly motivated ard ro& big lifestyle changæ. Shdd unclertaken coun.selling
from which shdd "læmt a lof' and she'd obtained a full-time job with Mission Australia, not only
rointaining it but achiwing promotion to becore à c(>màna8er of their tmancy sup¡xrrt prograrn This
invotves "lile skills mtoring" and Ms Lowah has beqr able to share hs own experíences with others, to
show that it is possible to rebuild a life away from clrinking. In this regard, she has also become a
significant role modd for younga msnbss of her own family, said Ms Penmm.
She h¿s bem living with âmily manbers including her mother æd ddaly grmdfather who is zuffering
Êom rlenentia and whom she hdps mre br. With a regrrlar inome she hopes to soon be al¡le to rml hr
own hore.
To deal with hs criminal offæces, À,fs Pmrnan submittd that a gæd bdraviour bond for a short period
would beappropriate givør that she hac{ already futþ colplied with ån intosive cou¡t ordet (this would
be additional to a five yer mandatory disqualification from holding a drivels licørce)'
Magistrate Bamba did not agree t'r'ith the proposed short paiod. Ordinarily br these offsrces and given
her prior convictionE he would have felt obliged, in line with Suprenæ Court direclions, to imPose gaol
time. Howwer, g¡van thåt the program is rewards^baserl and that Ms Lowah had done "everything a
¡ærson could', he impr:sed a cÐnviction md good bdtaviour bond for two years.
/ww.alicespringsneuis.com.au/2012l02l04/smart-court-gets-fìrst-graduates-and-first-romance/
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DAJ.0037.0002.7699
SMART Court gets first
ol2l12
graduates
and fÌrst romance
-
Alice Springs News
While the majority of referrals to the SMART Court appear to be for alcohol-related driv:ing offences
(violent offending is excluded), for Mr Smith and the third graduate, who preferred to remain
alìonymous, cannabis was the substmce at issue
Mr Srnith had comnitted propcty offence;, but had made early full admissions, returned the stolm
property and was ashamed and rmrorseful.
His early months on the program wue difficuìt but he thm made significant improvments and hacl
maintained total abstinmce from mid-December last year. He had gone from being an "anti-social young
adult to a productive grown-up", said his lawyu, Cì.ment Ng He had recmtly left a full-time iob but is
expæting to start a new joì: shortly. Mr Ng suggested that his offmding be deaìt with by way of fine or a
lly suspmded santence.
Magistrate Bamber said Mr Smith had præented with a ser.ious addiction problem but had btu an
"enthusiastic part¡cipant" in the program, aìways turning up "with a smile on his face" and "even whm
things weren't 100%, he was ahvays honæt". In his view Mr Smith's full and succæsful completion of the
ptogram amounted to "exceptional cirormstances" allowing Mr Bambq the discretion not to impose a
smtmce or comunity wotk ords Instead, he imposed a conviction ancl a good behaviour boncì for 12
months.
"Many may see this as very lenient," said Mr Bamber, but "the success and value of the program" liæ not
in pæple only completing it, but in them being able to "ga on with their Ìives" afterwards
The third graduate had pleaded guilty to possssing cannabis in a trafficable quantity and to growing it
(four plants) M¡ Bamber accepted the offmder's story that the amount resulted Írom the plants growing
unexpectedly well md that it was for his own use. Further, the offmder had bæn an "enthusiastic,
motivated participant" in the program which he had cornpleted "without blemish" In light of this, he
fu
imposed a conviction and good behaviou¡ bond for 12 months.
Two further participants on the court list last Thursday look set to graduate in the near future, their
good progress clearly a matter of pride and pleasure for themseìves and their caseworkss.
A woman in hc middle years sæmed also to be on the up and up. Having ber in trmsitional housing
after rehab, she is now ready to move into an "independent living facility". She has a full-time iob at Hetti
Perkins Aged Cate and the possibility of doing a training course.
"Are you missing the grog?" asked Mr Bambu.
"No,"
she smiled.
"You're going along nicely well done." Hdd sæ her again in a month
Another older womm was also doing well md earned back a day out of two days' gaol time she had
received for ilt earlier breach. Mr Bamber warned her not to be tmpted to drink whar she attsrcls a
funeral out bush, whidr he gave permission for.
Othersonthelistwereexperiencingarangeofdiffiolties,includingstayingoffthegrog
Foronemanit
had bæn because of "issuæ" at the place where he was living. He'd gone back to live with the mother of
his two childrm. Despite their separation she had accepted this and was there in court to support him
He was commded by Mr Bambs for ræognisìng his problems and taking action to deal with them.
Another man saicl he'd run into a "bit of bad company" while on four days off, the first break he'cl had
for while. His breadres had involved both cannabis and alcohol. M¡ Bambs wanted him to think about
intensive rehab: "Your work is getting in the way of you getting the heìp you need " The man said he
couldn'taffordtostopworkingatthemommt MrBamberimposedasanctionoflhreedays'gaol.
Serving the time was sus¡rrded and it will be possible for the nan to earn the days back if he can get on
the straight and narrow.
A man who had bæn in rehab but had moved into transitional housing had gone back on the grog. Now
he wants to return to rehab for "a few more months", according to his lawyer. Mr Bamber is waiting to
receive a psychiatrist's report before imposing sanctions for the breach
An older man applying to be assessed lor the program had his apptication challenged by the police
prosmtor, who contmded that the man did not have a "serious" substance misuse Ptoblm, an eligibility
tequirmmt under the legislation. He suggested that five d¡ink driving matters in 13 years for a man of
his age did not amount to a serious problem. The court sm many far more serious alcohol problems, he
said.
The man's lawyer, Mr Ng, outlined his climt's history with alcohol: his father was a serious alcoholic
/wwal¡cespringsne!\E com aul2012102l04lsmart-court-gets-fìrst-graduates-and-first-romance/
213
DAJ.0037.0002.7700
graduates . and fìrst romance - Alice Springs
SMART Court gets first
ol2112
Nevrs
and his climt begm drinking in his company at the age of 14. Over the years the habit had built up to a
peak in 2009 whm he was drinking 18 bærs a day. Until his recmt offerding he'd bæn drinking 14 beers
a day but had not had a drink since his last court aPPearance. He has never done any rehab.
Mr Bamber said that anyone drinking at that level had a serious problern: not only was it injurious to
health but it had caused the man to come to police notice. He suggested that "sudr horrific drinking
habits" as are seen in the Northern Teritory distort our views of what is "normaf'. He adjourned the
mattff to allow for dinicial
assessment.
Lawyer Ms Pmman raised the possibiìity with the court of acceptirg a dient who lives betwm the
communities of Ali Curung and Ti Tree. Tsrnant Cræk would be the best place for him to undertake
treatmmt. They do have a rehab facility but Mr Bambs said monitoring md clinicial testing would be m
ßsue.
"Tmnant Creek could do with
a whole program itself
" he said, deferring
a decision.
earlier report, Court oi good hope
See
Pictured from top: Erica Lowah ræeivæ hs SMART court graduation certificate from Magistrate David
Bamber. . The SMART Court team, left to right: Court dinicims Elayne Cheong and Megan Mcloskey,
Magistrate David Bambs. CAALAS lawyer Lauren Scholz Comunity Corrætions Officer Alysha
Kretschmann, NTLAC lawyc Clmmt Ng, and CAALAS lawyu Libby Pmman.
t@
Posled: February 4,2012 at 2:05 pm
' N ' Post
a
comlÌd1t
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MASpiers
Posted February 22, 2012 at
9:'1.5
am
Thanks for this artidq Kiean. Very grateful for your detailed, intelligmt and rounded reporting on
the extraordina¡y issu6 that Iace AÌice and the centre.
, Sr" ¡"ff".io
2.
Posted February 9, 2012 aT 2:77 pm
Brilliant, weìl done to Ms Lowah md well done to Mr. Bambs and all the Court workers. Great
work ald hope you have many more good climt outcomes.
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/ww.alicespringsnews.com.au/2012
Alice
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DAJ.0037.0002.7701
\\
Foreword
seeks
¿o
I
Problem-oriented jusfice
incorporaie innavatíve court
Ohallenges in rnainstrearning . S
"+)
specialty courts
practices ta taekle offenders' behaviaur
and problens assaciateri wÌth effenrling.
Qver lite last deca:le the ptínary
r?leans
of im¡s[emeniíng such practices has been
through the Cevek:pment of specialQ
crlL¡rts. Thís paper presenfs an avetl/tea/
af the challp,nges assocr'.lfed wilfi
im
p i ern
Lorana Bartefs
ent! ng aspects of speeralty
ceurts ín the mainstrearn crimirtal justic+
system" The key íssues explared are
ihe need fo promcte equí"ly af aceess.
resourcing and the rof e of the judicíal
Specialty courts were first introduced in Australia
i
that the social problems which may have contribut
require social or therapeutic, rather than legal solut
jurisprudence is the 'study of the role of the law as
the law's impact on emotional life and psychologic
Phelan (2003: 99) suggests that problem-solving c
or process changes. They challenge the nature of
a revolution in the way in which courts might oper
çf!îcer. Generic caurt interveniion arders,
such as the Vtet*rian Coittl lntegratecl
There are currently a number of specialty courts,
Servlces Pragrz¡¡, are re'¡ic-werl ancl
the acl,rani.ac¡es ol sçcå appraaches
riiscussed. The pa¡ser alsa ex;:lores the
defendants with drug abuse issues. As King et al
li
services in place in Australia. All jurisdictions have
(
have been extensively evaluated, wíth generally po
analyses indicate the programs are no more expen
is a range of other courts and programs particularly focused
íneãns ol ¡:ractotÍng rncre cast-eflective
delivery of justice; tfoe iss¿ies lhat can
concerns, family violence and lndigenous defendants. These
arise when juCi,-:ia! afficers adapt a nore
courts have been less comprehensively evaluated and what evaluations there have been
therapeutlr: rale in the adrn!nistraricn rsf
justice; atd the need for camprehensive
do not consistently point to reduced recidivism (see King et al 2009).
evalttatia¡t of co*rt innavatians" Finally,
lhe need for collesive palícies on lhe
developntent of proh)+m- oríented justice,
ln most cases, specialty court programs deal with a small number of defendants.;
ln particular, models such as resource-intensive drug courts tend to be focused in
metropolitan areas and access is therefore restricted to urban defendants. Thus, regional
wheíher in the mainstrea¡æ ciminal
and rural defendants may face disadvantage due to the comparative lack of appropriate
local services. Mainstreaming the principles of problem-oriented justice or mainstreaming
iLtstice systerr or specialtr¡ eaurts.
is examined.
specific programs or practices may promote more equal access to court innovations for a
greater proportion of defendants (Gray 2008). This may also have significant organisational
advantages (Cannon 2007).
This paper presents the key features of problem-oriented justice and examines three
challenges associated with these approaches and attempts at mainstreaming, namely,
Criminology
Research
Council
DAJ.0037.0002.7702
promoting equity, resourcing lssues and the
role of the judicial officer.
Key features of
problem -oriented justice
greater equity within the criminal justice
[g]eneral court intervention programs
system. lt should be noted, however, that
have developed as a way of facilitating
there are a number of other challenges
coud intervention where specialist
which would also need to be addressed
programs are unavailable or
to enable successful mainstreaming,
inappropriate... general programs
for example, legal and constitut¡onal
are not restricted by their eligibility
Problem-oriented courts act as a 'hub' to
constraints on what can or should be
criteria to a target group of offenders
connect various 'spokes'-such as drug
done in a conventional court.
with one particular issue.
and alcohol treatment agencies, communitybased corrections, probation services and
Promoting equity of access
domestic violence agencies-forming a
One of the
The model adopted ín Victoria provides a
key example. ln 2005-06, Victoria allocated
$17m for the development of the 'Court
holistic and integrated approach (Blagg
lntegrated Services Program' (CISP), with
2008). ïhere are significant differences
a further
in the structure and governance of such
aspects of specialty
courts and programs around Australia
$l O.5m allocated in May 2009
(LRCWA 2009).
but the following are common features:
courts and programs to the mainstream
criminal justice system has the potential
.
to overcome this lack of equitable access.
It provides a coordinated, team-based
outcomes for defendants, victims and
Defendants who do not reside within the
approach to address underlying issues
society
relevant geographical area for specialty
such as drug dependency, homelessness,
system change-seeking to re-engineer
court programs will benefit if these programs
disability and mental health problems. The
how government systems respond to
are rolled out in local courts across a
LRCWA (2008: 166) argues that other than
problems, such as drug and alcohol
jurisdiction, or nationally. ln order to do
family violence, 'it is difficult to envisage a
dependence and mental illness
so effectively, however, programs will need
"problem" that would not fit within any of
to be targeted to address the main needs
these categories'.
.
.
case outcomes-working on tangible
judicial monitoring-aclive use of judicial
authority to solve problems and change
.
CISP commenced in November 2006
of defendants.
defendants' behaviour
Offending behaviour is complex and there
collaborat¡on-engagement of
may be no one primary cause of offending.
government and non-government
Even where problems are correctly identified,
partners (eg social service providers
multiple diagnoses may prevent appropriate
and community groups) in reducing the
action. For example, some drug court
risks of re-offending
programs exclude defendants with mental
. non-traditional
health problems, exclude alcohol abuse
roles-this may include
andlor may not be appropriate for
altering aspects of the adversarial court
lndigenous defendants (Joudo 2008).
process, as well as ensuring defendants
play an active role in the process (see
Mainstreaming aspects of specialty courts,
Berman & Feinblatt 2001 ; Freiberg 2001
King et al 2009; Popovic 2006).
and developing a more generic intervention
;
response, may enable courts to become
more effective in dealing with the range
as a three year pilot program and by the
end of June 2008, 1,951 people had been
accepted into the program. ln the first year,
53.5 percent of participants completed
the program, but there is no information
currently available on recidivism rates or
other outcomes (LRCWA 2009). Evaluation
outcomes are due in October 2009 and
will inform the future development of the
program. lts features include:
.
Key chailenges
. targeted intervention, matching the
level of intervention lo the level of risk
There are a number of practical and
assessment will ensure an appropriate
conceptual challenges to bringing problemoriented justice into the mainstream. Farole
level of service is matched
ofthe key
challenges to applying problem-oriented
jusiice in mainstream courts were resource
of re-offending and need
defendant's behaviour and tailor responses
to the defendant's individual criminogenic
o priority access to treatment and support
servrces
needs. ln addition, greater focus on needs
r
outcomes
defendants' needs (although this assumes
One option for effectively mainstreaming
quality advice to magistrates to facilitate
optimal pre-sentencing and sentencing
to individual
adequate resourcing).
a centralised actuarial screening and
assessment process
of factors that have contributed to the
irr rnainsi¡"eaming
proirlerTr -ori entec lustice
et al (2004) found that some
CISP builds on existing Victorian programs.
r
consistent data collection to facilitate
evaluat¡on.
specialty court innovations may be to
constraints and judicial philosophy and
ln each of the three localions where CISP
adapt existing models of court ¡ntervention
experience. This paper explores these
is currenily running, there are a number of
programs as a generic order. The Law
case managers with experience in dealing
Reform Commission of Western Australia
with a range of issues, including drug and
issues further, as well as considering the
extent to which mainstreaming can promote
(LRCWA 2008: 157) has noted that:
DAJ.0037.0002.7703
alcohol abuse, mental health problems,
'
saving on resources-establishing
staff, money and access to medical,
general programs is said to be the
social and other services. Providing these
housing, homelessness and lndigenous
most cost-effective way to increase
issues (Magistrates Court of Victoria 2007).
Program staff will ensure participants receive
the opporlunity to participate in court
resources will obviously have significant cost
implications, particularly if rolled out across
intervention programs, as they do not
a
sufficient support following release from
require separate program staff and
if court interventions can be shown
custody, for example, by providing food
administrative structures for each
jurisdictlon
be effective in reducing recidivism and
promoting defendant wellbeing, including
welfare needs, acquired brain injury,
and travel vouchers, organising temporary
accommodation or paying for methadone.
'
CISP requires much less judicial
improved and expanded knowledgeestablishing general programs throughout
the criminal justice system is a means of
monitoring than specialty courts, although
the judicial officer may decide to monitor
jurisdiction or nationally. Conversely,
to
health and employment, costs are likely
to be saved in other areas of government
expenditure.
improving the knowledge and experience
By way of example, the NSW Magistrates'
the defendant's progress (l\rlagistrates
of all judicial officers, police prosecutors
Early Referral into Treatment (MERIT)
Court of Victoria 2OO7).ln practice, most
participants appear in court about once
and lawyers, which will in turn increase
program is a drug diversion program
available in B0 percent of NSW magistraies'
a month and may appear before a different
awareness of the benefits of such
programs and facilitate a better
magistrate. Significantly, CISP has access to
brokerage funding to provide individualised
understanding of the factors underlying
that for every dollar spent on the program,
offending behaviour (LRCWA 2OO9;
at least $2.41 was saved on costs for prison
and probation. An estimate of potential
courts. An independent evaluation estimated
2OOB).
supports in a timely manner and address
immediate needs to stabilise defendants.
New South Wales is cunently trialling
This is expected to reduce administrative
a
costs and delays associated with applying
Defendants lnto Treatment-for high-risk
for funding and facilitate a more accurate
defendants, which will use an actuarial tool
analysls of cost-effectiveness (LRCWA
developed by the NSW Bureau of Crime
program-Court Referral of Eligible
2008).
Statistics and Research to target defendants
Based jn pan on the CISP experience,
at local courts who are at a high risk of
the LRCWA has recently recommended
'establish[ing] a general court intervention
program' (2009: recommendation 37).
The LRCWA (2009) made a number of
re-offending. The program is voluntary and
savings, taking into account police
investigation and hospttalisation costs,
as well as savrngs from reduced crime,
indicated that as much as $5.54 could
be saved for every dollar spent on the
program (Northern Rivers Unìversity
Department of Health 2003).
will involve a face-to-face interview with the
Victoria's justice framework stipulates that
defendant to pinpoint the causes of their
when lunding is allocated for'problemsolving' programs, money must also be
criminal behaviour and determine if they are
Parlicipants will then undertake programs
given to enable appropriate data collection
for evaluation purposes. There is a strong
eligibility criteria should be as broad as
and treatment to address relevant issues
need to ensure that major systemic changes
possible, that the program be available
pre- and post-plea and be independently
including drug and alcohol problems, mental
to the ways in which Australian courts
recommendations about the scope of the
proposed program, suggesting that the
evaluated after two years.
The suggested advantages of a general
intervention program include:
'
increased access to courl intervent¡on
p rogra m s
general programs that
-
health issues, and education, employment
administer justice are properly documented
and accommodation needs. Two of the key
and evaluated. ln particular, well-designed
features of 'problem-solving courts' that are
studies are required that measure
proposed to be adopted in this program are:
appropriate outcomes to determine
ihe cost effectiveness of specialty court
"
utilising processes and sanctions that
encourage rehabilitation over retribution
programs. Evaluation approaches should
also ensure comparable control groups
building partnerships with agencies
and accurately identify genuine program
are vital to maximise the opportuniiy
as paft of the court process to better
effects (Payne 2005).
for all defendants to participate in
effective intervention programs, thereby
integrate social, welfare and health
supplement existing specialty courts
"
services for defendants.
To date, the Australian evidence on the
The Victorian, NSW and proposed WA
cost effectiveness of problem-oriented
approaches to justice is inconclusive, but
enhanced early lntervention-general
programs do not require a defendant
programs have the potential to significantly
the LRCWA (2008: 36) has asserted that
to plead guilty, but merely a willingness
to address one or more underlying
services, thereby promoting greater equity
within the criminal justice system.
substantially eliminating equity issues
.
suitable for ongoing participation in services.
increase access for defendants to relevant
problems. Accordingly, participants
can commence treatment or assistance
before finalising the key legal issues,
which may reduce the risk of offending
on baíl
R*soq-l¡'ce issur:s
successful court intervention programs
will result in cost savings to other areas;
for example, savings to the health
system from reductions in drug/alcohol
use and mental health problems, and
Many problem-oriented approaches are
savings to the welfare system because
resource intensive, requiring specialised
of increased employment.
DAJ.0037.0002.7704
Another issue is that it is problematic when
community corrections officers and
other justice agencies, thereby saving
defendants' access to the limited resources
of social services comes at the expense
time and money in other aspects of the
of members of the community who are
not involved in the criminal justice system.
lustice system. lt could lherefore be argued
that some of the apparently time-consuming
Accordingly, the LRCWA (2008) suggests
practices of problem-solving courts could
that it is not appropriate to reallocate
be accommodated within existing
existing resources, which could potentially
timeframes as a result of efficiency
reduce the availabiliiy of treatment for
people not involved in the criminal lustice
dividends in courl processes.
Instead, adequate addilional resources
independence and impartiality
.
if an intervention is a paternalistic
intervention, this may be antilherapeutic
because it undermines people's autonomy
in making decisions âbout their own lives.
Notwithstanding these concerns, judicial
ln a recent review of courl delays, Payne
way that does not compromise tradiiional
values of judging. lndeed, the ludicial role
needs to adapt to social change and to the
management which might also serve to
the lllicit Drug Diversion Initiative.
counteract some of the addiiional burdens
There are also issues in relation to direct
on court time which problem-oriented
Ihe
approaches necessarily require, lhese
LBCWA has observed that high caseloads
initiatives save time (and inferentially, money)
that sentencing
in the standard listing and processing
proceed¡ngs are invariably conducted
of criminal matters and would free up
quickly, noting that 'court intervention
additional time and resources for the more
programs [were] developed jn the United
States as a response to "assembly-line"
justice or what has been described as
onerous aspects of problem-oriented
models of justice. Some examples which
would flow from more problem-oriented
"fVcJust¡ce"' (LRCWA 2OOB'. 24).
approaches and/or complement such
It would therefore seem to foilow that
where this may conflict with judicial
(2007) detailed a number of international
initiatives to promote more efficient case
should be allocated, as occurred with
in traditional courts mean
the need to praise and reward participants
case management can be carried out in a
system, thereby creating equity issues.
costs to the criminal justice system.
"
methods include:
discovery of new knowledge concerning the
human psyche, human behaviour and social
need (King & Wager 2005). This will require
a change in thinking by judicial off¡cers,
together with
a concomitant realisation that Ìhe
traditional role of judicial officers is
evolving to meet the changing needs
of the communitres they serve
(Popovic 2OO3'. 120).
Courts may actually enhance their
reputation by modifying their processes to
each defendant and being involved ín case
and timeliness of information and
better deal with the social problems that
tbey confront, 'as long as they do so in a
conferencing will necessarify add to court
communication between the key
way consistent with their primary role of
time. However, this may not translate to
players, that is, investigation, prosecution,
maintaining the rule of law' (Cannon 2008:
increases in court administration time.
defence and the court
ludicial officers spending more time with
For example, none of the 59 magistrates
"
.
surveyed by the Judicial Commission
improving the quantity, quality
promoting earlier discussron of pleas
and improving incentives for guilty pleas
of New South Wales thought that their
n improving certainty in listings
involvement with the MERIT program had
significantly impacted their judicial workload,
.
improving services for victims and
witnesses and encouragrng greater
with two-thirds of respondents indicating it
participaiion in the trial process
had had little impact (Barnes & Poletti 2004).
(Payne 2007).
Further research is required to examine the
time taken to deal with defendants when
il,,¡le i:t il;r.:,ii;.,:1ir;i"ii r:iì'i+llr
adopting a more problem-oriented approach
to justice. lt r¡iould be beneficial to examine
One of the key features of problem-oriented
justice ts the more interventionist role
lhe court time required per defendant for
adopted by the presiding judicial officer.
a range of court intervention programs,
especially the general models discussed
above. The impact on the resources of
the criminal justice system as a whole
should also be considered.
Greater judicial involvement in defendant
case management may ultimately promote
efficiency in the administration of justice.
Freiberg (2003: 12) suggests that judicial
officers are able to act more 'quickly,
decisively fand] conclusively' than
However, this raises a number of
philosophical and ethical issues including:
,
the (im)propriety of judges both meting
out and supervising sentences
.
challenges to judicial independence and
the separatlon of powers through leamrng
up with the executive arm of government
n impaired judicial neutrality by involvement
in extra-judicial activities such as
community plannlng
219).ln recognition of this, WA country
magistrates have unanimously resolved to
.therapeutic jurisprudence
apply
principles
in their courts (King & Wager 2005).
There is clearly a balance to be struck in
terms of the appropriate level of judicial
interventlon. One critic of US drug courts
has stated 'l cannot imagine a more
dangerous branch than an unrestrained
ludiciary full of amateur psychiatrists poised ;1:¡
to "do good" rather than to apply the law' .*i
(Hoffman 2OOO:1479). The LRCWA (2OOB) '
responds by saying that judicial off¡cers
taking a 'problem-solving' approach will
still be performing a judicial function,
rather than being social workers.
It is not suggested that judicial officers will
'cure' mental illness or addiction, but that
they will 'be aware of and understand these
problems' (LRCWA 2OO8: 32). Furthermore,
judicial officers do not make their decisions
about defendants' treatment in isolation but
with a team of different agencies, While
employing judicial officers as de facto
lj
DAJ.0037.0002.7705
therapists and sociaf workers is unlikely to
or certain means of reducing rec¡divism
be eíther effective or efficient, there is scope
to better utilise 'the authority of the judicial
and they are not appropriate for all court
matters. Some of the processes discussed
this paper lack transparency and afford
officer [as] arguably more effective than the
in
authority of a community corrections officer'
defendanls no right of appeal (Popovic
(LRCWA 2oo8:25).
2006). There are also issues with ensuring
Conversely, it may not always be appropriate
for judicial officers to be involved in active
case management. ln fact, there is
considerable scope for involving judicial
officers in the defendant's progress under
an intervention program and thereby
obtaining the benefit of the gravitas which
accompanies the judicial officer's standing,
without requiring them to be the primary
agent in the ongoing moniioring process.
quality servíce provision, which may be
difficult to attain in rural and remote areas;
conversely, it will be detrimental to move
program participants too far from their
intervention program will be inadequate
to address their needs, although it
with crime prevention and correctional
encouragement, guidance and supervision,
or relevanti in addition, it is inefficient
but is not involved in treatment decisions
and tolerant of gaps in services. Victorian
(LRCWA 2008), thereoy minrmising
Deputy Chief Magistrate Popovic regards
concerns about exiensive judicial
involvement ¡n defendants' case
specialist and problem-oriented lists and
courts as 'an effective, accessible and
management.
cost-efficient innovation' (2006: 69). Blagg
Thís discussion considers one aspect of
(2008: 26) notes that a problem-orienied
approach to justice requires willingness on
workers and drug and alcohol counsellors,
whose roles and responsibilities will also be
transformed by a transition to mainstream
problem-oriented justice.
i,;ircii,¡silirt
This paper considers some key issues in
expanding problem-oriented and speciaþ
poltcy consisfency-consistency with
Aboriginal justice and health strategies,
it is not progressive, customer-focused
prosecution and defence counsel, social
.
and commencing the treatment process.
element' of the program and provides
including registrars, police officers,
in imposing sentences, with police,
cor.ections and human services agencies
overall strategies, for example with
(2004) criticises the existing system, saying
key players in the criminal justice process,
cooperation
with service providers; with the courts
should still assist in identifying needs
similar programs, the magistrate is a 'core
in mind that there are a number of other
. cooperative practices -
more serious offenders, a brief generic
Notwithstanding these reservaiions, Phelan
problem-oríented justice, namely, the role
framework, namely:
community networks. Further, for some
As a key example of this, in MERIT and
of the judicial officer. lt must also be borne
2004) also articulates four principles that
should guide the development of the
strateg¡es now in place
"
minimum necessary interventtonapplying the principle of parsimony
and using appropriate (or alternaiive
or diversionary) options or ìnterventions
. responsive procedures -
emphasising
procedural justice and the importance
of fair and participatory processes.
Victoria recently released its Justice
lhe part of participants in court processes
Statement 2, which notes, rnter alia, that
'[t]he next challenge is to unify problem-
to break with some traditional beliefs about
solving courts into a comprehensive
their role and embrace a more collegiate
style of working, suggesting that therapeutic
lurisprudence 'is geared towards making
the existing system work better rather than
replacing it with something else'.
model for suburban and regional courts'
(Department of Justice Victoria 2008: 8).
There is scope for other jurisdictions
to follow suit in developing a similar
overarching policy framework. To this end,
As discussed above, alljurisdictions have
the LRCWA has recently recommended
embraced diversionary court programs to
the introduction of a Court lnterventions
some extent, but many operate on an ad
Program Unit and the introduction of a
hoc basis with limited and non-recurrent
funding. Most jurisdictions also lack a
Western Australia (2009: recommendations
cohesive policy on the future of problemoriented justice. Victoria, by contrast, has a
legislatíve framework for such programs in
1 &2).
It is beyond the scope of this paper to
court programs into the mainstream criminal
justice system, namely, cost considerations,
significant commitment to the philosophies
equity of access and the role of the judicial
and has developed a number of policy
officer. Other considerations include the
documents to further their development,
need to improve communication and ensure
including The Policy framework to
procedural fa¡rness, effective community
consolidate and extend problem- solvi ng
and inter-agency collaboration, and the
courts and approaches (Department of
need for comprehensive evaluat¡on and
Justice Victoria 2006).
research.
Adopting problem-oriented approaches
ïhe Attorney-General's J ustice statement.
new directions for the Victoria justice system
jurisprudence, contend that problem-solving
should not be regarded as a panacea
2004-201 4 (Department of Justice Victoria
courts may actually be 'a transitional stage'
underpinning such programs and courls
prescribe a set list of problem-solving
practices and principles that should
be adopted in any particular jurisdiction
or nationally. Nevertheless, the issues
discussed here may assist in reviewing
and responding to the key challenges in
implementing problem-oriented approaches
in Australian courts. Wexler and Winick
(2003: 6), the founders of therapeutic
DAJ.0037.0002.7706
Dr Lorana Badels is the Criminology
Research Council Research Fellow at
the Australian lnstitute of Criminology.
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in the development of 'an overall judicjal
system attuned to problem solving'. Th¡s
paper outl¡nes some of the issues to be
addressed in this current trans¡tional stage
which will hopefully assist in the criminal
justice system's evolution towards an
effective problem-oriented model.
Farole D eT al 2OO4. Collaboratíve justîce
in conventional cout-ts: oppot'tunit¡es and
challenges. San Francisco, CA: Judicial Council of
California. http://wvwv. courtinf o, ca. gov/programs/
collab/documentVTranferabi lityStudyFullReport.
pdf
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