FROM PUNISHMENT TO REHABILITATION
Dershowitz argued that a sharp escalation of penalties had failed to
prevent recidivism or to check a rising crime rate especially in the
area of drug laws(12). It is generally accepted that
there is often the issue of drug addiction and the extent of treatment
especially for lower level drug offenders. This leads to the conclusion
that imposing harsher sentences is both misguided and misdirected(13).
In cases of drug offenders, the risk of their re-offending can be eliminated
by their rehabilitation which is one of the purposes of sentencing.
With the view to break the cycle of drug use and recidivism(14),
there are options which allow the traditional criminal justice system
to be more flexible by introducing pathways to treatment and assessment
as part of the sentencing process. For instance, in NSW remand offenders
were referred to treatment during eight weeks under the 1977 Drug Diversionary
Programme. Moreover, the Drug and Intervention Programme of 1995 is
designed to educate who do not yet have a serious drug problem.
Among such alternatives, the Drug Court initiative is the most thorough
and ambitious scheme. The Drug Court Act was legislated
to implement the objective to rehabilitate drug offenders. It is believed
that the Act will divert offenders from involvement in criminal justice
procedures, drug use and crime and into rehabilitation and a sustainable
way of life(15).
4. DRUG COURTS IN AUSTRALIA
An initiative that moves beyond traditional criminal law and sentencing
practices is the trial of a drug court. It is created by statute in
NSW, the Drug Court Act 1998 (NSW). It is expected to be able
to merge care and harm minimisation for the offender with the control
and authority of the court.
4.1 Background to the establishment of drug court Drug
courts, which developed in the United States in the late 1980s, have
emerged as one response to the growing problem of drug use and drug-related
crime in Australia(16). The research conducted by
the NSW Bureau of Crime Statistics and Research indicates that legally
coerced drug treatment can decrease drug use and criminal activity by
offenders(17). In particular, research suggests that
offenders dealt with by drug courts in the United States have lower
re-arrest rates than offenders dealt with by the traditional criminal
With the attempt to reduce the level of criminal activity and to provide
incentive and support for offenders to rehabilitate themselves, the
NSW Drug Court is established and began operation in February 1999 as
a pilot programme modeled on similar American Drug Courts(19).
This was followed by the opening of courts the following year in Queensland,
South Australia and Western Australia(20). The object
of the Drug Court Act 1998(NSW) is to reduce the level of criminal activity
that results from dependency by establishing a scheme where persons
can be diverted into programmes designed to eliminate or at least reduce
their dependency on drugs and increase their ability to function as
a law abiding citizen(21).
4.2 General characteristic of drug courts Even though
there are drug courts in other jurisdictions, this paper will focus
on the operation of the Drug Court in NSW. In general, a drug court
is a special court that helps a drug-dependent offender deal with dependency
by combining treatment services, corrections programmes, frequent drug
testing and court supervision in an intensive rehabilitation programme(22).
Basically, the programme lasts for 12 months. Participants
have to be eligible under the definition of section 5 of the Drug Court
Act 1998 (NSW). For instance, the person is ineligible if he or she
is charged with an offence involving violence. Participants are supervised
by probation and parole officer and, if they do not comply with the
regime, may be sanctioned by the court(23). However,
the Court is in its infancy therefore it is foreseeable that the court
may encounter some practical obstacles. These hurdles are experienced
by both parties: officers and offenders.
4.3 Criticisms of the Drug Court initiative In February
2000, the NSW Attorney-General announced that the Drug Court would continue
beyond its pilot phase. This continuation was seen as the success of
the Drug Court programme. However, during the operation of the Court,
a variety of implementation problems were noted.
4.3.1 Interpretation Firstly, the Drug Court Act 1998 (NSW) does not define ‘violent conduct’ which will
result in not being eligible to the programme. In the case of Sloan(24),
the accused was charged with robbery. One of the victims stated that
she was not afraid of the offender, yet she finally gave the money to
him. The court allowed the offender to enter into the programme since
the court found that the accused had only threatened to use some violence
but did not use actual physical force.
This decision was differentiated by the case of Armanios(25).
In this latter case, the court held that an offence of robbery, where
the offender was armed, raised quite considerably the degree of violence
which is implicit in the threat. Thus it was an offence involving violent
conduct even though there was no actual violence on the part of the
accused. There seem to be some confusion over the issue of actual violence
which results in the uncertainty of the participants' eligibility.
The problem on the interpretation whether the accused is qualified also
arises out of the issue of dependency on a prohibited drug. Section
5 of the Drug Court Act 1998 (NSW) indicates that the offender
must appear to be dependant on a prohibited drug. In Chandler(26),
the court defined ‘appears to be dependent on prohibited drugs'
as when the offender's life style is subordinate to the use of such
drugs . Thus driving under the influence of heroin is counted as a direct
result of drug dependency. This was a different view from that of the
Crown since the prosecutor assumed that there must be a financial connection
between the drug dependency and the criminal activity.
4.3.2 Violent offenders The eligibility for drug court
admission is ineffectively operated not only by the disagreement over
construing the Act but the criterion itself is also inadequately drafted.
This means that drug courts are aimed at non-violent offenders, however
in recent years, drug courts have increasingly faced with those with
a history of crime. There is a strong support that violent offenders
should be considered for inclusion in the court's treatment programme(27).
It is believed that violent offenders might benefit from treatment programme
since treatment for addiction may lead to an abatement of violence(28).
(12) Alan Dershowitz, Fair and Certain
(13) Ian Dearden, "Drugs misuse and the
injustice of life" (1988) 13(4) Legal Service Bulletin 49
(14) Barbara Smith, Robert Davis and
Sharon Goretsky, Strategies for courts to cope with the caseload pressures
of drug cases (1991).
Unknown author, "Drugs" (2000) 29 Hot Topics 1.
(16) Arie Freiberg, "Drug Courts"
(2002) 27(6) ALJ 282.
(17) NSW Bureau of Crime Statistics and Research, Drug Crime Prevention and Mitigation: A Literature Review and Research
(18) NSW Law Reform Commission, Diversionary
(19) Johanna Pheils and Andrew Eckhold, The
Drug Court of New South Wales (1999)
(20) David Indermaur and Lynne Roberts, "Drug
Courts in Australia: The First Generation"(2003) 15(2) Current
Issues in Criminal Justice 136.
(21) Section 3 of the Drug Court Act 1998 (NSW).
(22) John Costanzo, "The trial of a new
drug sentencing option for Queensland" (2000) Proctor 14.
(23) G L Davies and K M Raymond, "Do Current Sentencing
Practices Work?" (2000) 24 Crim LJ 236 at 245
(24) R v Sloan  NSWDRGCRT 3.
(25) R v Amanios  NSWDRGCRT 5.
(26) R v Chandler  NSWDRGCRT 6.
(27) C A Suam, F S Scarpitti and C A Robbins, "Violent
offenders in drug court" (2001) 31(1) Journal of Drug Issues 107.