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.
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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
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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
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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 exace
ated by drug use.
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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.
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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.
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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.
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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
eaches conditions the matter will go back through the standard court system.
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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.
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Drug Courts
What is a Drug Court?
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Overview
Drug Courts cu
ently 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.
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Eligibility – Magistrates Court
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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 cu
ent sentence.
Plead guilty to the offence(s)
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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
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County Court
Similar procedure and eligibility requirements.
Requires defendant to not be facing a risk of imprisonment of more than four years.
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Drug and Alcohol Treatment Orde
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.
.
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Non-compliance with DATO
If the defendant
eaches any of the conditions of the DATO, they will have to attend Court and explain the
each.
In some cases the DATO will continue, with possible extra conditions attached.
If there are repeated
eaches, the DATO will be withdrawn and the defendant will go through a standard sentencing process (likely with a term of imprisonment attached).
.
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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).
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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.
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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”
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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
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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.
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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.
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Case management
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CISP - Evidence
A 2010 evaluation found over a two year period 50.5% of CISP participants incu
ed 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.
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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
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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
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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 behaviou
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.
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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
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Aggravating factors
Prosecution will making a case for aggravation noting:
Need to ‘send a message’ to the community (general dete
ence).
Importance of providing a ‘wake up call’ for this offender (specific dete
ence).
Nature and gravity of the offence
Offender culpability and degree of responsibility.
Impact on the victim
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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 XXXXXXXXXXVR 14
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‘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 occu
ed 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, dete
ence and community protection – a person driven to crime by drug dependence may be better served by community based AOD services Nguyen v The Queen XXXXXXXXXXVR 673.
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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 XXXXXXXXXXVR 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.
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Sentencing options
Dismissal
Conditional discharge
Adjourned undertaking
Alcohol and other drug treatment orde
Fines
Community co
ections orde
Imprisonment
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Assessment 1 – Due 18 Septembe
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Law & Justice Policy
Drug-related crime
Week 4: Policing drugs
How it feels to be policed: Peter, 41
https:
youtu.be/fgGwKo_N8SM
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How it feels to be policed
“Um, well I guess I just don’t see [police] as working for me, as now