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Alan 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).


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 justice system(18).

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).

Part  3

(12) Alan Dershowitz, Fair and Certain Punishment (1976).
(13) Ian Dearden, "Drugs misuse and the injustice of life" (1988) 13(4) Legal Service Bulletin 49
Barbara Smith, Robert Davis and Sharon Goretsky, Strategies for courts to cope with the caseload pressures of drug cases (1991).
(15) 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 Agenda (2000).
(18) NSW Law Reform Commission, Diversionary Sentencing (2001).
(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 [1999] NSWDRGCRT 3.

(25) R v Amanios [1999] NSWDRGCRT 5.
(26) R v Chandler [1999] 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.
(28) Ibid.

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