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Law & Justice Policy Drug-related crime Week 5: Punishing drug-related offenders Speaking of ‘drug-related crime’ Economic-compulsive crimes: which are committed in order to support a dependence on an illicit drug. Eg. theft, fraud, drug selling, sex work etc. Psychopharmacological crimes: which are committed as a result of being intoxicated with a substance or as a consequence of mental health effects of chronic use. Eg. violence, drug-driving, Systemic crimes: which are crimes arising from participation in drug markets, particularly maintaining control over distribution, supply and use. Eg. violence (particularly homicide), money laundering, Drug law offences: which are crimes specifically focused on drug use. Eg. possession, use, social supply. 2 Where do drug-related offenders go? Police caution Court drug diversion Mention / Trial Sentencing CISP Drug Court Drug and alcohol treatment order Imprisonment Fine CCO Adjourned undertaking Dismissal / Discharge Charge 3 Risk-Need Responsivity Model RISK:The probability of recidivism: First time or juvenile offender? Likely low risk. Long history of offending? High risk. Higher risk = more intense intervention. NEED:Criminogenic needs: anti-social attitudes, anger management, impulsivity, drug and alcohol dependence. Treatment should target actual criminogenic needs RESPONSIVITY:Ability and motivation for change: where is the offender at in terms of insight and willingness to change? Only worth attempting if motivated and engaged 4 A note on drug use and guilt Very limited relevance at trial The relevance of drug use at trial is usually quite minimal. Can be relevant to understanding the mindset of the offender and whether they had a certain specific intent (eg. did they intent to cause serious injury or merely a common assault). Self-induced drug intoxication and drug-induced mental illnesses cannot be considered in defences of mental impairment or when arguing involuntariness. Exception: if pre-existing condition exacerbated by drug use. 6 Court diversion What is Court Diversion? Available for a variety offences (not just drug possession and use). Allows someone to avoid a criminal record by undertaking certain conditions. These conditions can include undertaking alcohol and other drug treatment. 8 Court Drug Diversion Only available for matters within the Magistrates Court. To be eligible: The Informant (the police officer responsible for the matter) must recommend diversion, and it must be authorised by their station Sergeant. The offence must be capable of being dealt with in the Magistrates’ Court The offence must not have a minimum or a fixed sentence or penalty The person must plead guilty to the offence. 9 Procedure Once informant has recommended diversion, an application can be made to the Magistrates Court. A diversion co-ordinator interviews the defendant, explaining likely diversion conditions. This can include steps needed to be taken before the diversion hearing. A hearing is set before a Magistrate, where a decision will be made on diversion (often done “on the papers”). If granted a number of conditions will be set for diversion. If rejected, the matter will go through the standard court process. 10 Breaching diversion conditions If the defendant completes the diversion conditions, the matter will be dismissed meaning you will have no criminal record of the charge. If the defendant breaches conditions the matter will go back through the standard court system. 11 Downsides? Court diversion programs have been criticised for forcing low-risk offenders through treatment processes they don’t need. This risks labelling effects where individuals see themselves as “addicts” as opposed to recreational users. 12 Drug Courts What is a Drug Court? 14 Overview Drug Courts currently operate out of several Magistrates’ Courts in Victoria and within the County Court of Victoria. Main advantage is being subject to a drug and alcohol treatment order (DATO) rather than a term of imprisonment. 15 Eligibility – Magistrates Court 16 Eligibility – Magistrates Court The accused person must: Be dependent on drugs and / or alcohol and this must have contributed to their offending. Be facing an immediate term of imprisonment not exceeding two years. Be facing charges that are not sexual offences or involve the infliction of actual bodily harm unless minor in nature. Not be subject to a parole order or a current sentence. Plead guilty to the offence(s) 17 Magistrates Court Process Screening Hearing Magistrate decides whether to go ahead Assessments Summary case conference Are you eligible? Sentencing Hearing Magistrate decides whether to impose DATO 18 County Court Similar procedure and eligibility requirements. Requires defendant to not be facing a risk of imprisonment of more than four years. 19 Drug and Alcohol Treatment Order A DATO consists of two parts: Custodial sentence: a sentence of imprisonment (not exceeding two years in Magistrates Court and up to four years in County Court) to be served in the community to allow the participant to receive drug and / or alcohol treatment. A treatment and supervision order: which is a set of conditions that must be followed in order to successfully complete the custodial sentence in the community. This is supervised by a Judge / Magistrate. Generally, participants are required: To attend and participate in regular appointments with the Drug Court (usually weekly) Routinely submit to supervised drug and alcohol testing. Engage in AOD or other mental health assessment and treatment. Attend educational, vocational, employment or other programs if required. . 20 Non-compliance with DATO If the defendant breaches any of the conditions of the DATO, they will have to attend Court and explain the breach. In some cases the DATO will continue, with possible extra conditions attached. If there are repeated breaches, the DATO will be withdrawn and the defendant will go through a standard sentencing process (likely with a term of imprisonment attached). . 21 Do Drug Courts work? The most immediate advantage of Drug Courts is that they are cost-effective. Vic estimate: the cost per participant is $67.78 per day compared to $257.35 per prisoner, per day. Evidence showing greater success than either voluntary treatment programs or imprisonment in terms of employment and reductions in AOD use. Vic Drug Court Reduced recidivism by 23% compared to standard drug offender process (NB it’s already the case that about half of drug-related offenders don’t reoffend) [Department of Justice (2005). 22 Downsides? Research on Drug Courts is rather patchy and often with methodological flaws. Often the biggest justification for their use is “cost effectiveness”. Professor Kerwin Kaye from Wesleyan University argues that Drug Courts still retain all the downsides of carceral institutions including disproportionate control over racial minorities and poor people. 23 Downsides? “[D]rug courts rely upon the threat of imprisonment in the unreconstructed retributive prison, both in order to coerce initial participation and as a therapeutic punishment in and of itself (via short periods of “flash incarceration” used in sanctioning rule violations)” Excerpt From: Kerwin Kaye. “Enforcing Freedom” 24 Court Integrated Services Programs Where do drug-related offenders go? Police caution Court drug diversion Mention / Trial Sentencing CISP Drug Court Drug treatment order Imprisonment Fine CCO Adjourned undertaking Dismissal / Discharge Charge 26 CISP Available at most metropolitan Magistrates Courts and (most recently) the County Court for Metropolitan residents. Targets a person going through the “standard” court processes who has been granted bail and has yet to be sentenced. The program allows somebody to undertake a period of case management for up to 18 months prior to sentencing. Completion of CISP usually results in either a dismissal or adjourned undertaking. 27 CISP Pretty open eligibility, but generally requires a matter before the court and a person is experiencing: Mental health issues. Disability, ABI or cognitive impairment. Substance dependence or otherwise harmful use. Family violence. Homelessness, Inadequate social, family or economic support. Any other relevant clinical support need. 28 Case management 29 CISP - Evidence A 2010 evaluation found over a two year period 50.5% of CISP participants incurred no further charges and there was a 30.4% drop in re-offending frequency by those who did. There was also a remarkable decrease in the seriousness of offending post CISP program. 30 Sentencing Where do drug-related offenders go? Police caution Court drug diversion Mention / Trial Sentencing CISP Drug Court Drug treatment order Imprisonment Fine CCO Adjourned undertaking Dismissal / Discharge Charge 32 Purposes of sentencing The Sentencing Act 1991 (Vic) (‘the Act’) states that the purposes of sentencing are to: Punish the offender in a manner which is just in all the circumstances; Deter the offender and others from committing the same or a similar offence; Facilitate an offender’s rehabilitation; Denounce the offending conduct; and Protect the community 33 General sentencing principles Parsimony – the sentence must be no more severe than is necessary to meet the purposes of sentencing Proportionality – the overall punishment must be proportionate to the gravity of the offending behaviour Parity – similar sentences should be imposed for similar offences committed by offenders in similar circumstances Totality – where an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour. 34 Plea in mitigation Defendant (or their lawyer) will making a case for leniency noting: Circumstances of the offender (age, physical and mental health, life circumstances). Unique harms of imprisonment for this offender. Otherwise good character. Motive for offending Remorse, particularly early plea of guilty Willingness to seek treatment 35 Aggravating factors Prosecution will making a case for aggravation noting: Need to ‘send a message’ to the community (general deterrence). Importance of providing a ‘wake up call’ for this offender (specific deterrence). Nature and gravity of the offence Offender culpability and degree of responsibility. Impact on the victim 36 Drug induced mental health issues? If the defendant experiences drug-induced psychosis or another mental health issue, will only be taken into account for mitigation if they did not know it was a possible consequence of taking the substance. R v Martin (2007) 20 VR 14 37 ‘Addiction’? A diagnosis with substance use disorder or indications of dependence may be mitigating and reduce someone’s moral culpability. This is likely to be the case if the offending occurred to feed a habit (although trafficking above street level less so) R v Bernath [1997] 1 VR 271. Addiction may also be relevant for rehabilitation, deterrence and community protection – a person driven to crime by drug dependence may be better served by community based AOD services Nguyen v The Queen (2011) 31 VR 673. 38 Intoxication during offending Intoxication – whether through alcohol or narcotic consumption – will rarely mitigate offending and may even be an aggravating factor. If the offender knew of the likely consequences of drug ingestion their culpability is increased, and intoxication may be an aggravating factor Hasan v The Queen (2010) 31 VR 28. There is a public policy impetus to deter drug fuelled offending making it likely to result in aggravation DPP (Vic) v Simpas [2009] VSCA 40. 39 Sentencing options Dismissal Conditional discharge Adjourned undertaking Alcohol and other drug treatment order Fines Community corrections order Imprisonment 40 Assessment 1 – Due 18 September 41 Law & Justice Policy Drug-related crime Week 4: Policing drugs How it feels to be policed: Peter, 41 https://youtu.be/fgGwKo_N8SM 2 How it feels to be policed “Um, well I guess I just don’t see [police] as working for me, as