Transcript Lawfest 2011 - Community Legal Centres Tasmania

THERAPEUTIC JUSTICE IN
TASMANIA
[Therapeutic Jurisprudence]
[Problem Solving Courts]
[Diversion Courts/Lists]
[Solution-Focused decisions]
Presented by Magistrate Glenn Hay to the
COMMUNITY LEGAL CENTRES
CONFERENCE - 15 November 2013
The Problem









Magistrates Courts deal with over 30,000 matters per year - pressure
of demand on the system.
20,000 criminal matters per year
All start in the Magistrates Court and 98% stay in this jurisdiction.
Most offenders plead guilty and then we sentence them.
Many defendants are multi repeat-offenders - recidivists. The revolving
door.
Courts often become the dumping ground for citizens with multiple
problems otherwise unsolved by society. Suddenly those with health
or substance abuse problems become justice problems.
The merry-go-round of offending to feed the drug habit.
Often offenders would be imprisoned and not treated at all and then
end up back in the community that had not properly supported them in
the first place.
How to slow or brake the merry-go-round/revolving door?
PRISON STATISTICS

In 2003 - 457 prisoners per day

now the average is 522 prisoners per
day

net operating expenditure per
prisoner per day in 2003 - $167

as at 31 January 2012 - $322.85
($118,000pa.) Source – Productivity Commission’s Report on Gov’t
Services 2012
PRISON STATISTICS












Prison population - 1700 in 2010
Recidivism - 57% of prisoners in 2007 were known to have served a sentence prior
to their current prison term. In 2010 – approx 65%. 11% had been to prison more
than once before.
93% of prisoners are male.
57% of all prisoners were under 35 years of age. Avg. age is 33
Of both males and females, 25 to 34-year-olds had the highest imprisonment rates in
2007 (64% and 54% respectively per 100,000 per year).
80% have not gone beyond year 8 – basically illiterate
80% were unemployed at the time of sentence.
75% have a chronic health problem.
39% have had a serious head injury
60% of those entering prison will identify alcohol and other drugs as being a
significant contributor to their offending behaviour. 90% report severe alcohol intake
issues. 25% have HepC and 10% contracted HepC in prison. 21% have a morphine
addiction – only 1% of those needing treatment receive that treatment in prison.
Marijuana is the most prevalent drug of addiction. 41% have a speed addiction.
Opioides are a major problem because of prescribed medications.
Co-morbidity issues - 98.5% ATOD use and Mental Health Issues. 26% on antidepressants. 80% smoke.
They are overwhelmingly young, male, poorly educated, unemployed and have high
rates of mental illness, intellectual disability, substance abuse, physical disability and
chronic disease.
The Solution


“Judicial officers can help to make a difference for
people appearing before them not only by according
procedural fairness but also, despite the constraints of a
busy list, by expressing concern and compassion for the
situation of their fellow human beings and by using
processes conducive to a therapeutic effect. This has
the potential….to promote public confidence in the court
as an institution that listens, acts and responds to the
needs of those it serves. It allows a judicial officer to
take a more comprehensive and creative approach to
determining cases.”
M.S.King [2003] 28 Alternative Law Journal @175
The Solution


Participants in problem-solving diversion courts
are seen as citizens who have offended and
have offending-related problems (mental health,
drugs, alcohol, anger, lack of maturity or
experience in life) or who otherwise have
problems with the law, but also as human
beings who have strengths and insight into, and
possible solutions for, their problems.
Those who do not display such strengths and
insight remain in the general lists and are dealt
with in the more traditional ways with hopeful
deterrence by fine or imprisonment or the like.
The Solution
an Ethic of Care – diversion courts







Need to brake the revolving door = win/win
Rehabilitation by absenting the negative – offending;
and imposing a positive – the ability to lead a happy,
constructive and law-abiding life in the community.
Involves new roles for judicial officers, lawyers and
prosecutors. Minimises the adversarial process.
Addresses issues underlying offending
Involves a collaborative, team-based decision
making process
Requires judicial monitoring
Develops community connections
What sentences can the court
impose?
Section 7 of the Sentencing Act provides:
(a) record a conviction and order that the offender serve a term of imprisonment; or
(ab) if the court is constituted by a magistrate, record a conviction and make a drug
treatment order under Part 3A (2007) in respect of the offender; or
(b) record a conviction and order that the offender serve a term of imprisonment that is
wholly or partly suspended; or
(c) record a conviction and, if the offender has attained the age of 18 years and the
offence is punishable by imprisonment, make a community service order in respect of
the offender; or
(d) with or without recording a conviction, make a probation order in respect of the
offender if the offender has attained the age of 18 years; or
(e) record a conviction and order the offender to pay a fine; or
(ea) in the case of a family violence offence, with or without recording a conviction,
make a rehabilitation program order; or
(f) with or without recording a conviction, adjourn the proceedings for a period not
exceeding 60 months and, on the offender giving an undertaking with conditions
attached, order the release of the offender; or
(g) record a conviction and order the discharge of the offender; or
(h) without recording a conviction, order the dismissal of the charge for the offence; or
(i) impose any other sentence or make any order, or any combination of orders, that the
court is authorised to impose or make by this Act or any other enactment.
The principles of Sentencing are to be found in
S 3 which provides:







(a) amend and consolidate the State's sentencing law; and
(b) promote the protection of the community as a primary consideration in
sentencing offenders; and
(c) promote consistency in the sentencing of offenders; and
(d) establish fair procedures for –
 (i) imposing sentences on offenders generally; and
 (ii) imposing sentences on offenders in special cases; and
 (iii) dealing with offenders who breach the conditions of sentences;
and
 (e) help prevent crime and promote respect for the law by allowing
courts to –
 (i) impose sentences aimed at deterring offenders and other persons
from committing offences; and
 (ii) impose sentences aimed at the rehabilitation of offenders; and
 (iii) impose sentences that denounce the conduct of offenders; and
(f) promote public understanding of sentencing practices and procedures;
and
(g) set out the objectives of sentencing and related orders; and
(h) recognise the interests of victims of offences.
Problem Solving Courts
Diversion Lists
An approach by the judicial officer which moves away from the immediate
questions of guilt or innocence
















On-going judicial supervision
Integration of service provision
Direct engagement with defendants
A non-adversarial approach
Drug Diversion Courts (post plea)
Mental Health Diversion Courts (pre plea)
Family Violence Courts – FVOIP.
Youth Justice Courts
Contest Mention Courts
Probation orders including FVOIP and Sober Driving Program
Youth Justice community conferences
Misuse of Drugs Act - cautions
Conciliation and Mediation intervention. In civil or quasi-criminal matters eg Child
Protection; discrimination.
Community Courts
Koori Courts (not in Tasmania but Sentencing Act and YJ Act and various Cw’th
Acts require aboriginality to be taken into account)
DRUG TREATMENT COURTS
DTCs created in a response to the
perception that the traditional adversarial
criminal justice system does not adequately
address the issues of non-violent drug
offenders.
These courts reject the adversarial model.
DRUG TREATMENT ORDERS
WHAT ARE THEY?



A Drug Treatment Order (DTO) is an unique sentencing
order – the role of the Court, Prosecution and Defence
Counsel extends beyond the final sentencing
disposition.
The Court continues to review offender progress during
the order and CDO/prosecution/defence counsel
continue to provide recommendations to a Magistrate
on alterations or adjustments to the order that may
benefit the client.
This process is established through court review as a
core program condition and the holding of case
conferences.
How does your client get a DTO?
Entry Criteria – DTO
Offender
is to be found/plead guilty of an imprisonable
offence [s27B(1)(a)]
The offence must not involve actual bodily harm that in
the Court’s opinion is not minor harm [s27B(1)(a)(ii)]
The offence must not be a sexual offence as defined in
Part 3A [s27B(1)(a)(i)], and the offender must not have
any proceedings outstanding relating to sexual offences as
defined in Part 3A [s27B(1)(f)(i)]
How does your client get a DTO?
[cont.]




The offender must not be subject to a sentencing order
of the Supreme Court [s27B(1)(e)(i)]
The offender must not be subject to a parole order
under the Corrections Act 1997 [s27B(1)(e)(ii)]
The offender must not be subject to another Drug
Treatment Order [s27B(1)(e)(iii)]
The offender must not have any proceedings
outstanding relating to the infliction of actual bodily
harm [s27B(1)(f)(ii)]
Role of Defence Lawyers –
A judgment call for your client



Identify that your client has a drug problem and fits
other eligibility criteria for referral into one of the three
diversion streams.
Provide information to the client on:
 The program generally, including the necessity of a
plea or finding of guilt;
 The assessment process specifically;
 The need to provide written consent for referral to
assessment in the case of a DTO.
Facilitate referral to the program by:
 Liaising with the police at point of arrest; or
 Liaising with the CDO or prosecution prior to bail
hearing
[cont.]
Suggest CMD as an option to the Magistrate at the appropriate
hearing, also advising that offender has been informed about the
program, is potentially a suitable candidate based on the offence, and
is willing to undertake assessment for the program.
Ongoing representation in the case of a DTO –
 Attending case conferences and contributing to discussion on an
offender’s progress;
 Attending court reviews to represent client’s interests;
 Liaison with offender on progress through the program;
 Adjustment of core/program conditions;
 Encouraging compliance and involvement during the life of the
DTO
What is the role of the prosecutor?



Identify that offender fits eligibility criteria for referral into one of the three
diversion streams.
Facilitate & Non-obstructionist.
Ongoing representation in the case of a DTO –
•
Attending court reviews to provide accountability for criminal
behaviour and ensure that community safety is not compromised;
•
Attending case conferences and contributing to discussion on an
offender’s progress;
•
Generally supportive of treatment process;
•
Focus on long-term recovery and rehabilitation;
•
Facilitate the rights and interests of victims;
•
Encouraging compliance and involvement during the life of the DTO;
•
Adjustment of core/program conditions;
•
Non-compliance and cancellation.
Sanctions and Incentives - the carrot
and stick approach
What happens if the participant offends
during a DTO?
Subsuming a Term of Imprisonment into the Custodial Part of the DTO
[s27P]

This provision allows a Magistrate to hear an offence that may have
been committed either before or after a DTO was made and
subsume a term of imprisonment into the existing DTO.
Where an offender is subject to a DTO and the:





Court finds an offender guilty of an offence, and
Court imposes a term of imprisonment for the offence, and
Court does not suspend the sentence either in whole or in part,
and
Length of the sentence is less than the remaining length of the
custodial part of the DTO, and
Offence is one for which the Court could have made a DTO if the
offender were not already subject to a DTO
[cont.]
then the Court can either:
Subsume
the sentence into the custodial part of the order, or
Cancel the treatment and supervision part of the DTO and either:
▪
▪
Activate some or all of the custodial part of the order, or
Cancel the custodial part of the DTO and, other than by
making an order of imprisonment, deal with the offender for
each offence in respect of which the DTO was made in any
way in which it could deal with the offender had it just found
the offender guilty of the offence.
How do DTO conclude?
Circumstances where a DTO may be cancelled –
Cancellation
of an order where an offender’s circumstances were not
accurately presented [s27Q(1)(a)]
Cancellation of an order where an offender’s circumstances have
materially changed [s27Q(1)(b)]
Cancellation of an order for withdrawal of consent [s27Q(1)(c)]
Cancellation of an order where the treatment and supervision part of
the order is unlikely to achieve one or more of the purposes for which
the order was made (repeated failures) [s27Q(1)(d)]
Cancellation of an order by committing an offence punishable by a
term of imprisonment exceeding 12 months [s27O]
Cancellation of an order on successful completion of the Drug
Treatment Order [s27L]
Cancellation of an order after two years [s27R]
How do DTO conclude?



Graduation
Program lasts 18 to 24 months (max)
Offence free and drug free for minimum of
90 days preferably 180 days.
What next Drunk drivers
Over-consumption of
alcohol is the most
prevalent substance
abuse and is more likely
than not to be present
with other co-morbidities
– should alcohol be part
of the drug/MH list?
Drunk Driver Courts





In many countries including NZ, often known as
DWI (Drive Whilst Intoxicated) or DUI (Drive
Under Influence) Courts.
For hardcore drunk drivers with priors or in
excess of .15 and often alcohol dependent
Treatment orders include use of ignition
interlock devices sometimes with photo id.
Orange County California had recidivism rates of
nearly 25% in 2004 but have now reduced that
to 4.6% after DWI intervention.
Tasmania Magis Court hopes to introduce similar
in next 12 months.
THE MENTAL HEALTH LIST
How the List started


Court initiated: collaboration b/w dedicated
magistrate, FMHCLO police prosecutors and legal
practitioners
Re-arrangement of Court lists to divert defendants
with mental illness into specialist sittings
Key Principles





Based on a ‘therapeutic jurisprudence’ approach
Assisting people to address the mental health needs
related to their offending behaviours
Improving community safety and reducing re-offending
Improving the psychological and general well being of
people on the List
Reducing the use of criminal justice punishments for
health related behaviours
Procedure



Consent: Participation in the program is at all times
voluntary and any assessment will only occur after the
potential participant or their legal guardian has provided
written consent
Referral: A person can refer themselves into the program or
be referred into it by their Solicitor, TasPolice (including
Prosecutions), Magistrates, Mental Health Case Managers,
Other Service Providers, or Anyone with a genuine interest in
the welfare of the person
Assessment: In order to determine whether a person is
suitable for the program they must first undergo an
assessment interview by a Forensic Mental Health Court
Liaison Officer
Procedure (cont.)



Court Diversion: Once assessed as eligible and suitable by the
FMHCLO, the person will appear before the Magistrate presiding
over the List. The Magistrate will, on the basis of information
provided to the Court by the FMHCLO, police and defence lawyer,
decide whether to accept a person on to the program and tailor an
order—usually a bail order—best suited to addressing the person’s
mental health needs
Court Review: During a person’s diversion program, a series of
court reviews will take place, which the person will be required to
attend. This is a relatively informal process that provides an
opportunity for direct interaction with the Magistrates
Sentencing: At one of the reviews a final date will be given for the
person to return to Court for finalisation of their matters. A
Magistrate may take into account the person’s success or otherwise
in the diversion program when considering a final sentence
Key Players





Magistrates
Forensic Mental Health Court Liaison
Officers
Prosecution
Legal Aid
Private Legal Practitioners
Magistrates





Encouragement
Support
Sympathy
Listening
Praising
Police Prosecutors



Dedicated police prosecutor allows the
prosecutor to develop a relationship with the
FMHCLO and the defence counsel
Everyone ‘…is on the same wave length.’ (PP)
‘I certainly see it as something that is far more
just and appropriate. So if a person has a
mental illness and their mental illness has had a
significant impact on the offence or offending
behaviour, then that’s the thing that needs to be
targeted – their health. So if Health and Justice
can come together and work together well on
that, I think that’s fabulous.’ (PP)
Legal Practitioners




CLC / Legal aid / private practitioner
Still speak on behalf of the defendant in
many circumstances
Enters pleas in mitigation when matter is
being finalised.
Acts as an interpreter to ensure that Def is
aware of what is being decided, Def’s
obligations and bail conditions
Forensic Mental Health Court
Liaison Officers





Conduct assessments
Refer participants to appropriate service
providers
Monitor level of engagement/compliance
Make recommendations about changes to
treatment regimes and/or bail conditions
Liaise with prosecution and defence to
determine progression of the case and
date of finalisation
On Magistrates: Offender
Interviews



‘They could tell that I was really worked up and they
accommodated it…they got my partner to come over
and sit next to me on the big round desk…they were
very aware of how I was feeling I think.’
‘The magistrate, he was terrific. He was really good. He
was understanding of me (sic) mental illness and how
I’d become to get mentally ill and he was very
supportive actually.’
‘He referred to things so that (my daughter) understood
why she was there. And when you are on medication
you get a bit hazy about things that have happened, so
it was good that he mentioned things like that.’
On FMHCLOs - Offender
Interviews




‘The FMHCLO are, in my view, the ones doing
all the work.’
‘She was very compassionate.’
‘Yeah, she’s terrific. Yeah she’s really good
with the people that she deals with…I watch her
and she’s really, umm how would you put it,
she tries, she tries hard.’
‘She would always…follow up on anything that
was discussed and…she would ring up and
explain stuff to me before and after meeting
with the lawyer. She was really good.’
On Legal Practitioners – Offender
Interviews



‘I can understand about 70% of (what is said in
court), but when they go through this paragraph
and that paragraph, I’ve got no idea, but after
court the lawyer comes out and he sort of
explains it to me in layman’s terms.’
‘The solicitor was real good; they worked well
with the mental health team.’
‘She (explained what was being discussed) that
day when I went to court and I couldn’t
understand what the judge was saying. She got
up and talked for me’
Collaboration & Cooperation
Operational
In
the initial period between referral and
appearance informal discussions take place
between the FMHCLO, prosecutors and defence
counsel.
Once the FMHCLO’s recommendation of
eligibility/suitability confirmed by the Magistrate,
and the appropriate order made, the quality and
integrity of the health interventions are maintained
by the role of the FMHCLO.

Monthly case management meetings between
the FMHCLO, prosecution and lawyers to review
progress
Management

The List is supported by Tasmania Police, the
Legal Aid Commission, and Forensic Mental
Health Services, all of whom play vital courtbased roles to enable it to function effectively
Outcomes



Offers a more therapeutic response to
defendants with mental health issues
Reducing re-offending rates of participants and
improving community safety - a 2009 evaluation
found that 79% of participants had reduced
their offending levels post MHDL participation
Improving coordination between the criminal
justice agencies and health service providers
Outcomes continued


Based on the success of Hobart, a Mental Health
Diversion List commenced in the Launceston
Magistrates Court in March 2010 and in 2013
into NW Coast in a more limited way.
MHDL received a Certificate of Merit in October
2010 as part of the Australian Crime and
Violence Prevention Awards and achieved a top
10 ranking in the national crime prevention
awards
Statistics – Hobart (January)
Clients on the list since 2007 = 312
Clients successfully completed the list = 273 (or
87.5%)
Gender
Male = 192 (or 61%)
Females = 122 (or 39%)
Statistics continued

Distribution of Sentences:
 50% = Good behaviour bond without
conviction recorded
 33.7% = Good behaviour bond with
conviction recorded
 8.3% = Charges dismissed
 7.9% = Tender No evidence
Statistics continued

Diagnoses (including multiple diagnoses):
 schizophrenia
 bi-polar disorder
 depression
 post-traumatic stress disorder
 personality disorder
 alcohol/drug dependence
 psychosis not otherwise specified
 anxiety
 obsessive compulsive disorder
 other (delirium, low IQ, ABI, disassociation, etc.)
28%
14%
9%
6%
5%
4%
4%
3%
1%
26%
WHAT NEXT?



We are broadening MH lists to include
Intellectual Disability and Acquired Brain
Injury defendants?
Possible changes to Sentencing Act to
permit deferred sentencing – gives more
options.
$ resource is a major issue.
The Court is adapting to new
challenges - see our website

http://www.magistratescourt.tas.gov.au/