There exist a wide variety of programs aimed at diverting offenders away from the Australian criminal justice system. This guide is intended to provide a basic outline of these diversionary programs, and list the various criteria that must be satisfied by defendants to be eligible for them. It should be noted that these programs can be generally divided into two rough categories: those programs referred to in the Criminal Procedure Act 1986 (NSW), and those that are not.
Intervention programs referred to in the Criminal Procedure Act
Section 345 of the Criminal Procedure Act 1986 (NSW) (hereafter CPA), provides a framework for the recognition of intervention programs within the legal system, and to ensure they are fairly managed and administered to reduce the future likelihood of reoffending.Intervention programs are defined under section 347 as any measures for dealing with accused persons including measures that:
(a) promote the treatment or rehabilitation of accused persons, or (b) promote respect for the law and the maintenance of a just and safe community, or (c) encourage and facilitate the provision by offenders of appropriate forms of remedial actions to victims and the community, or (d) promote the acceptance by offenders of accountability and responsibility for their behaviour, or (e) promote the reintegration of offenders into the community.
Defendants may be referred to an intervention program at various times during criminal proceedings. They may enter into an agreement to subject themselves to an assessment of their appropriateness for an intervention program, as a condition for bail being granted to them. Furthermore, the bail condition may also impose a requirement that the defender participate in an intervention program. The court may also make an order to participate in an intervention program if defendants are found guilty of an offence. Participation in an intervention program may also be included as a condition of a suspended sentence or good behaviour bond.
Eligibility requirements for Intervention Programs under the Criminal Procedure Act
Section 348 subsection 1 of the CPA establishes that only summary offences and indictable offences dealt with summarily may be diverted into intervention programs. However, section 348 subsection 2 specifically excludes certain offences, even if summary or indictable offences deal with summarily, from intervention programs. These include:
- Malicious wounding or inflicting grievous bodily harm, or maliciously causing a dog to inflict grievous bodily harm;
- Sexual assaults and child prostitution;
- Production, dissemination, publication or possession of child pornography;
- Stalking or intimidation with intent to cause fear of mental or physical harm;
- Offences involving firearms; and
- Offences involving prohibited plants, or supplying prohibited drugs
- Traffic Offender Programs
Traffic Offender programs were introduced under section 19B of the Criminal Procedure Regulation 2005 (NSW). There are numerous pre-sentence Traffic Offender programs which are applicable to people who have committed driving offences. They are usually six to eight week programs consisting of group therapy, experiential learning, and assignments and lectures. At the end of the program, the organisation which runs the program then sends an achievement report and attendance record to the court. However, it should be noted that the courts are not obligated to take into account a completed driver education program when determining an appropriate sentence for a high-range PCA offender.
- Circle sentencing intervention program
Circle sentencing is a new intervention program that was introduced in section 19 of the Criminal Procedure Regulation 2005 (NSW) (hereafter CPR), and is aimed predominantly at adult aboriginal offenders. It is an alternative sentencing court, where the local Aboriginal community is involved in the process of sentencing offenders. Circle sentencing is aimed at making the process for Aboriginal offenders and at improving confidence in the criminal justice system, while empowering local members of the community to address the root causes of criminal behaviour.
- Forum sentencing program
This program was introduced in 2005 in section 19A of the Criminal Procedure Regulation 2005 (NSW) to help reduce the future chance of the offender reoffending, bringing the offender, the victim and all other affected parties together in a safe environment. The victim and the other parties are then able to explain how the criminal offence has personally affected them and their lives, and create a list of actions that the offender can do to repair the harm caused.
Current Diversionary Programs
Apart from the previously discussed intervention programs referred to in the Criminal Procedure Act, there also exist a number of intervention programs not specifically referred to in the legislation.
- The Cannabis cautioning scheme
This was a pre-charge scheme introduced in 2000 operated by the NSW Police Force, and it allows police to exercise their discretion in certain cases and issue a caution to the offender. It is usually given to people found with small amounts of cannabis in their possession, people can only be cautioned twice and they cannot be cautioned at all if they have prior convictions for drug offences, violence or sexual assault. Under the cautioning scheme, the person is then referred by police to a help line and is given information about the harms resulting from cannabis use.
- The MERIT program
MERIT stands for the Magistrates Early Referral into Treatment. MERIT was introduced primarily to deal with people with drug problems but in July 2009, the Rural Alcohol Diversion scheme was formally merged with the MERIT. It is important to note that MERIT only applies to defendants appearing in Local Court matters that will be finalised at the Local Court. Also, if a defendant completes a MERIT program, it will not necessarily result in the dismissal of charges, and there will still be a court hearing, but the defendant’s participation and successful completion may be taken into account during sentencing.
MERIT dealing with drug problems: To enter into the MERIT program, one must (1) be an adult, (2) have an illicit drug problem, (3) be willing to participate in the program and consent to treatment, (4) not be involved in offences related to physical violence, sexual assault or District Court matters, (5) have a treatable problem, and (6) be approved by the Magistrate to participate in the program. If one is accepted into the MERIT program, extra conditions will usually be imposed on the existing bail conditions requiring the person to comply with the directions of the MERIT team. Any failure to participate in the MERIT program will result in exclusion from the program.
MERIT dealing with alcohol (formerly known as the Rural Alcohol Diversion scheme): This was a scheme fairly similar to the MERIT program, except that its main substance of concern was alcohol, whereas to be eligible for MERIT, defendants had to demonstrate an illicit drug problem.
- The Youth Drug and Alcohol Court
The Youth Drug and Alcohol Court (hereafter YDAC) commenced in 2000, and as indicated by its name, it deals only with young offenders who have alcohol or drug problems. The court sits and operates within the Children’s Court system, and there are geographical limitations on its jurisdiction. Currently, only young offenders in the Western Sydney, Central Sydney and Eastern Sydney regions can be referred to the YDAC.
Usually the child must be aged between 14 and 18 years, although a child under 14 may also be referred to the YDAC. In addition, the offences should be dealt with to finality in the Children’s Court, the child must be ineligible for a caution or youth justice conferencing under the Young Offenders Act, and the child must plead guilty or admit to the offences. However, sometimes even if a child pleads not guilty to some offences, the Magistrate may exercise their discretion by referring the child to the YDAC. It is important to note that the court of its own motion may refer a young person for assessment of their suitability for the YDAC program without requiring the child’s consent. However, a young person may at any time withdraw consent to continue to participate in the YDAC program itself.
For the first appearance of the young person before the Court, the Joint Assessment and Review Team (JART) will conduct an Initial Assessment of the young person before the formal court appearance and will recommend to the YDAC whether or not the young person is eligible for the YDAC program. During the YDAC program, the young person will be required to attend Report Back sessions so they can be subject to continuous monitoring and supervision.
Where the young person breaches the YDAC program, the Manager of JART will determine whether the breach is serious or minor in nature. If it is an allegation of a serious breach, the young person may be arrested and brought before YDAC. If YDAC finds the young person has committed a serious breach, then they may either be discharged from the program and sentenced or allowed to continue with the program. If the young person is allowed to continue with the YDAC program, the program will usually be altered or extended. If JART reports a minor breach by the young person then the YDAC, after hearing any submissions, may determine that the young person remain on the current YDAC program, on an amended program, or discharge the hearing. When the YDAC Magistrate determines a sentence against the young person, they will take the young person’s participation and successful completion of the program into account.
- Community Aid Panels
Community Aid Panels consist of a police officer and other prominent members of the community, and are generally intended to assist in the punishment of young and first time offenders. Offenders will usually get more lenient sentences after participating in the Community Aid Panel program, because it is often indicative of a certain level of self-motivation, as well as improved prospects for rehabilitation. Offenders may ask the court after entering a plea of guilty to be referred to a Community Aid Panel, and if successful a bail condition may be imposed that the offender contacts their local panel. In the Community Aid Panels program, the young person is required to appear before the Panel and efforts are made to identify why the offence was committed. The Panel will provide an opportunity for family and friends to gather around a young offender in a positive way, to enhance that offender’s self-esteem, which is so often a problem with the young and unemployed. The Panel may also set an amount of unpaid hours of work to be completed by the offender, and this usually totals between 10 and 20 hours.
Post Sentence Programs
- The Drug Court
The Drug Court has been set up to deal with drug-dependant offenders, allowing them to avoid imprisonment provided they comply with the court-supervised treatment program. Its jurisdiction is currently limited to the Western Sydney region, where it handles both Local and District Court charges. In order to qualify for the court, all offenders must first satisfy several criteria. They must have a place of residence in Western Sydney, be highly likely to receive a full-time custodial sentence if convicted, plead guilty to that charge, and appear to be dependent on prohibited drugs. However, they will be ineligible for the Drug Court if they are less than 18 years old, if they are appearing before the Children’s Court, if they are facing a charge involving a strictly indictable supply of prohibited drugs, violent conduct or sexual assault, or if they suffer from a mental condition that would impede their participation. For further information, please refer to the other article written on the topic.
- The Sober Driver Program
The Community Offender Service also runs a 9-week post-sentence traffic offender program known as the Sober Driver Program. Under this program, if the offender is convicted of a second drink-driving offence within a five-year period, the court may make an alternative order for a supervised good behaviour bond with an additional requirement to complete the Sober Driver Program. If successfully completed by the offender, then supervision may be terminated early by the Community Offender Service, provided the imposed sentence allows this to happen.
- Home Detention
Home Detention Orders direct that prison sentences be served by offenders through home detention, and are only applicable to sentences of 18 months imprisonment or less. However, the conditions imposed by Home Detention Orders are generally extremely onerous, with strict supervision by the Community Offender Service including random phone checks, unannounced visits, and regular urinalysis. Offenders are also prohibited from drinking alcohol or using illegal drugs if under a Home Detention Order. An application for home detention should be made immediately after offenders are sentenced to full time imprisonment.
Furthermore, Home Detention Orders do not apply to certain types of offences including sexual assault of adults or children, any offence involving the use of a firearm, assaults occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), stalking or intimidating a person with the intention of causing the person to fear personal injury, and domestic violence offences. In addition, the Home Detention Order cannot apply to those offenders who have the above mentioned offences on their criminal records.
Barclay Churchill Solicitors and Barristers
111 Elizabeth Street
Sydney NSW 2000