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Freiberg, Arie --- "Drug Courts: Sentencing Responses to Drug Use and Drug-Related Crime" [2002] AltLawJl 99; (2002) 27(6) Alternative Law Journal 282

  • Drug Courts: Sentencing responses to drug use and drug-related crime
  • Drug Courts: Sentencing responses to drug use and drug-related crime

    Arie Freiberg[*]

    Victoria’s specialist drug court represents a move away from a focus on individuals and their criminal conduct to offenders’ problems and their solutions.

    Victoria’s first drug court opened its doors at the Dandenong Magistrates’ Court in May 2002. It is the fifth such court in Australia.[1] Drug courts were opened in New South Wales in 1999, Queensland in 2000, South Australia in 2000 and Western Australia in 2001. The Northern Territory has announced its intention to open a drug court in 2003 and the Queensland court will soon be extended to two more locations in Northern Queensland. Two specialist youth drug courts have also been established. The New South Wales Youth Drug Court commenced in July 2000[2] and, in Western Australia, a youth drug court scheme operates under the Young Offenders Act 1988 (WA).


    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. They are part of an emerging trend in judicial administration which has seen the development of what have been termed ‘problem-oriented’ courts. As well as drug courts, examples of these forms of specialised courts include mental health courts, domestic violence courts, Aboriginal courts and community courts. They represent a move away from a focus on individuals and their criminal conduct to offenders’ problems and their solutions.[3]

    Although the American experience was becoming known in Victoria and the various political parties discussed the possibility of establishing a drug court in vague terms, it was not until the New South Wales Drug Court was established and operating that there was serious interest in a Victorian trial. In February 2000, the Department of Criminology at The University of Melbourne held a seminar on drug courts at which representatives of each of the jurisdictions which had introduced, or were considering introducing, drug courts or similar programs, presented papers on their states’ initiatives.[4]

    Initially, Victoria was opposed to the creation of a drug court. The Drug Policy Expert Committee (DPEC), which had been established by the Premier under the chairpersonship of Professor David Penington, ex-Vice-Chancellor of the University of Melbourne, had recommended against drug courts in its report published in 2000.[5] The report argued that the establishment of a specialist court was not the correct response to Victoria’s drug problem for three major reasons.[6] First, it argued that in practice every court is a drug court by reason of the volume of cases which come before it and therefore every magistrate must have the necessary expertise and resources to deal with drug-dependent offenders. It argued that, if a specialist jurisdiction were to be established, the other courts would revert to traditional criminal justice practices with detrimental consequences to other offenders. It also believed that a specialist court might siphon off funds from the generalist programs. Second, it argued that drug courts would compartmentalise a court’s response and deal with the most difficult end of the spectrum, when what is required is a range of flexible responses across the system. Finally, it argued that focusing on the serious end of the offending scale might mean that fewer resources would be available during the early stages of offending when interventions might be most effective.

    In 1998, a Court Referral and Evaluation for Drug Intervention and Treatment Program (CREDIT) was established at the Melbourne Magistrates’ Court. The CREDIT program was established after the decision was made ‘that the US drug treatment court model was inappropriate in the Victorian context’.[7] This was the preferred model in Victoria until October 2000, when the Attorney-General, the Honourable Rob Hulls, commissioned a review of Victoria’s sentencing laws, encompassing six broad terms of reference. The review was to consider, amongst other matters:

    [w]hether any, and if so what, sentencing changes would be required for a drug court to operate if a drug court were to be established in Victoria. The response to this term of reference should take into account the structure, jurisdiction and function of any proposed drug court.

    The review produced a Discussion Paper in August 2001, which was broadly favourable to the establishment of a drug court in Victoria.[8] Between August and December 2001, a number of consultations were held with key government and non-government stakeholders to develop appropriate legislation which was tabled in parliament in December 2001 as the Sentencing (Amendment) Bill 2001 (Vic) and which passed through parliament in March 2002 with the support of all parties to become the Sentencing (Amendment) Act 2002 (Vic). The Victorian Drug Court is a three-year pilot program, whose continuation will depend on the results of an evaluation study now underway.

    What is a drug court?

    A drug court is a ‘court specifically designated to administer cases referred for judicially supervised drug treatment and rehabilitation within a jurisdiction’.[9] The essential features of a drug court have been summarised as being the designation of a court for dealing with a specified class of offenders, the integration of drug-treatment services within a criminal justice case-processing system, early intervention, the use of a non-adversarial approach, a dominant and continuing role of the drug court judge, frequent substance abuse testing, frequent contacts with the drug court, a comprehensive treatment and supervision program, and a system of graduated sanctions and incentives.[10]

    Legal basis

    Though the term ‘drug court’ is useful to describe a certain philosophical approach to dealing with drug-related crime and drug-affected offenders, it tends to mask the very considerable differences between the courts. Australia’s drug courts vary widely in their legal basis and jurisdiction. Three of the Australian jurisdictions have provided their drug courts with a separate legislative foundation; one as a special Act effectively establishing the drug court as a separate entity[11] and two as sentencing dispositions available in special divisions of the Magistrates’ Court.[12] The South Australian Drug Court operates under its general bail legislation,[13] which provides judicial officers with wide discretion in dealing with offenders brought before the courts. Western Australia is primarily a bail-based scheme, though changes have been foreshadowed in relation to the use of deferred sentencing powers under the Sentencing Act 1995 (WA).

    The Victorian Drug Court is not a separate court, but a division of the Magistrates’ Court. In comparison, the Drug Court of New South Wales has been established as a separate court which is presided over by a District Court judge, who has the powers of both the District and Local Courts. It can thus deal with indictable offences, indictable offences triable summarily and summary offences. In Queensland, the Drug Court is conducted by a magistrate, who has been specially appointed for the purpose. The Western Australian and South Australian Drug Courts are also part of the structure of the courts of summary jurisdiction.


    The broad aim of the Victorian drug court is to ‘facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented, integrated drug or alcohol treatment and supervision regime’,[14] which allows the court to take account of the offender’s dependency in its activities, processes and sentencing outcomes. It also aims to reduce the level of criminal activity and health risks associated with dependency.

    Whereas most of the United States drug court programs target offence and offender populations at the lower end of the seriousness range, the majority of Australia programs are aimed at serious cases. Makkai observes that, in Australia, the drug courts:

    have chosen to focus on the hard end of offenders — those with a long history of property offending. There are a range of factors that have been important in ensuring this focus. The first is that drug treatment courts are seen as the ‘last’ option before incarceration in a range of diversionary strategies … The second reason is undoubtedly the costs associated with the establishment and maintenance of the drug treatment court. A third reason is the desire to reduce any likely impact of net-widening through police prosecuting drug offenders who should be dealt with via less costly diversionary schemes.[15]

    In Victoria, before imposing an order, the Court must be satisfied that a sentence of imprisonment would otherwise be appropriate (but not one served by way of a suspended sentence or an intensive correction order). In other words, the alternative of imprisonment must be real, not nominal.

    Eligibility and pre-conditions

    Drug courts are not intended to be forums in which offenders contest the charges which are brought against them. Rather, they are intended to be treatment courts. In many jurisdictions, they are known as drug treatment courts. This means that, in order to avail themselves of the facilities of the court, the offender must plead, or indicate that they intend to plead, guilty. Though this may superficially seem unfair, it means that the court’s resources are not diverted from its main task of supervision and treatment. In most jurisdictions, contests as to guilt or otherwise can take place in the referring court, which preserves the offender’s rights to challenge the nature, number and seriousness of the charges they are facing, but does not require the drug court itself to spend valuable time on matters outside its immediate concern.

    In order to qualify, an offender must be dependent on drugs or alcohol and the court must also be satisfied that the dependency contributed to the commission of the offence. Of all the Australian jurisdictions, only Victoria has included alcohol in its eligibility criteria for its drug court, though it would be expected that the court will initially focus on illicit drug use.

    Sentence structure

    The sentencing structure is complex. The Sentencing Act 1991 (Vic) provides for a Drug Treatment Order (DTO). This order is integrated into the full range of sentencing options and is generally subject to the same procedures as other sentences, except where special procedures are provided for.

    Under s.18Z of the Sentencing Act 1991 (Vic), after convicting the offender, the Drug Court may impose a DTO. The DTO has two parts, a treatment and supervision part and a custodial part. The treatment and supervision part consists of conditions which are designed to address the offender’s drug or alcohol dependency and has a duration of two years. However, the Drug Court has the power to reduce this period by cancelling the DTO if the offender successfully completes the program before the expiry of two years. This part also contains core and optional program conditions.

    The second part of the DTO, the custodial part, is a term of imprisonment of up to two years which the Drug Court must impose on the offender. This is the term of actual imprisonment which the offender would have received had they not been placed on a DTO and need not correspond to the length of the treatment and supervision part. It is intended to be proportionate to the nature and seriousness of the offence. The offender is not required to serve the custodial component of the DTO unless the Court activates it following a breach or cancellation of the DTO. It acts as a suspended sentence, but is termed the ‘unactivated’ term of imprisonment in the Sentencing Act 1991 (Vic). The total length of the DTO may not exceed two years.


    The core of the drug court regime lies in the range of conditions attached to the orders made by the courts, the ability to vary them and the consequences of breach. The legislation varies in the degree of specificity regarding the courts’ powers to make conditions. The Victorian drug court scheme follows the structure of the other sentencing options in the Sentencing Act 1991 (Vic) by providing ‘core’ and ‘program’ conditions. The core conditions are that the offender not commit another offence punishable by imprisonment, attend the Drug Court as required, report to a community corrections centre or specified place, undergo treatment for the drug dependency as specified, report to and accept visits from an officer, give notice of a change of address, not leave Victoria without permission and obey all lawful instructions.[16] The program conditions can require the person to submit to drug testing and detoxification programs, attend programs, submit to treatment, not associate with specified persons, reside at specified places, and do or not do anything that the Drug Court considers necessary regarding the person’s drug or alcohol dependency or regarding any personal factors which contributed to the criminal behaviour.[17]

    One of the major differences between drug courts and the normal sentencing courts is the ability of the drug court to vary or adjust the sentence whilst it is in operation in response to the offender’s progress on the treatment program. Because the programs are court based, these variations can be simple, frequent, quick and direct.

    A distinguishing feature of the drug court program is the application of a range of rewards or sanctions by the court while the offender is under its jurisdiction. This use of ‘smart punishment’[18] is regarded as essential to achieve the purposes of the program because it applies both positive and negative reinforcement techniques quickly, consistently and publicly on persons who require a great deal of external motivation to successfully complete their programs.[19]

    Often, the reward or sanction amounts to a variation to a condition of the order in the direction of less or more severity. Sometimes, the reward or sanction is qualitatively different and in addition to the standard conditions. Thus, the Victorian Drug Court also has the power to impose a curfew, order up to 20 hours of community service, order the person to remain at a specified place for up to 14 days or impose a term in a secure custodial facility for up to seven days as sanctions.[20] The period spent in custody is a part of the unactivated custodial term originally set by the court. The Sentencing Act 1991 (Vic) distinguishes between sanctions imposed for failure to comply with the conditions of the order and failure to comply by the commission of further offences.[21] In the latter case, the sanctions are the same as for failure to comply with conditions, but the Court also has the power to cancel the order.


    Many of the longer term drug court regimes have adopted a phased program which requires the participant to progress from one stage to another. The New South Wales program is typical and was originally intended to take 12 months to complete. The three phases are:

    1. Initiation and stabilisation (three to four months or longer): offenders are expected to reduce their drug use, stabilise their physical health, cease criminal activity, complete a relapse prevention program, become fully engaged in counselling, commence addressing major life issues and demonstrate a commitment to rehabilitation.. They are also expected to submit to twice weekly urine testing, one home visit, one additional contact visit and a weekly report to the Court;

    2. Consolidation and early re-integration (three months): offenders are expected to remain drug-free and crime-free, stabilise their home, social and domestic environments, address major life issues and remain in good health. Weekly urine testing, weekly contact with a probation officer and a fortnightly report to the Court are also required;

    3. Re-integration (6 months): offenders are expected to remain drug-free and crime-free, remain in sound home, social and domestic environments, have found employment or be ready to, and be fiscally responsible. Fortnightly urine testing, fortnightly contact with a probation officer and monthly report to the Court are expected.[22]

    The level of supervision decreases with each phase and an offender can proceed and regress through the stages depending on their level of achievement. In New South Wales, all three phases must be completed before the participant can ‘graduate’ from the program. This has created problems for the drug court program where the regime is ‘open-ended’, that is, the person can theoretically be on the program indefinitely. However, in Victoria, the program must terminate after two years, no matter what phase the person is in.

    Drug court teams

    The notion of a drug court ‘team’ is a feature of the drug court initiative. A team is a group of legal, health, law enforcement and correctional professionals, which works with the drug court judge on a regular basis to help determine eligibility, to deal with legal or logistical matters, such as outstanding charges, to monitor an offender’s progress, to formulate treatment plans and services, to recommend program conditions or changes to them, to advise on changes to program phases and on rewards and sanctions (including prison) and to advise on whether or not the program should be terminated for success or lack of it.[23] It requires a range of disparate groups, with often conflicting interests, to work together. The team usually meets prior to each sitting of the drug court to review the cases and remains in court during proceedings.[24]

    Testing regimes

    Urine testing, especially random testing, has emerged as a key component of drug treatment court programs. It is often the only objective measure available to the court to measure compliance with the abstinence conditions.[25] Testing has an important role in clinical management, as a marker of clinical stability, as a tool for the therapist in advocating for or against the client and as a means of determining the client’s honesty. It can help the therapist evaluate the offender’s progress.[26] Frequency of testing can vary from three times a week in the early stages of the program to two times per week in the last stages.


    The drug court program may end positively or negatively. The program will end positively where the person has met the program conditions and aims or progressed through all of the required stages. However, in Victoria, because the Drug Treatment Order is of finite length, whether or not the program is successful, it must terminate. If the person has substantially complied with the conditions of the program and the Drug Court considers that the order is no longer necessary to meet the purposes for which it was made, the Court may cancel the treatment and supervision part of the DTO, which effectively brings the whole order to an end.[27]

    A person may fail on the program because they breach its conditions, commit further offences, find it too onerous or are unwilling to continue, for whatever reason. The DTO may be terminated if the offender commits further offences,[28] if their circumstances were not accurately presented at the start, if the offender is no longer able or willing to comply, or if he or she has breached the curfew, community work or residential conditions of the order.[29]

    Evaluations and outcomes

    All of the drug court programs were introduced on a pilot basis, their continuation being subject to satisfactory evaluation. Evaluations include effectiveness evaluation (reduction of recidivism, of re-arrest rates, in substance abuse, in imprisonment rates of target groups, and in supervision requirements; and improvements in health and social outcomes), process evaluation (how people perceive the program, the Court and its goals; satisfaction levels; analysis of program implementation, client characteristics, drug court operations and services, and program compliance, quality and completion) and cost-benefit analysis.[30]

    The New South Wales pilot is the only program in relation to which an evaluation has been published. In February 2002, the New South Wales Attorney-General announced that the court would continue beyond its pilot phase.

    Data from New South Wales shows that to March 2002, 608 people had been accepted onto its Drug Court program. Of the 162 offenders participating in the programs, 446 ended their participation with the program and received a final sentence. Of the 446 offenders who had exited the program, 87 (19.5%) had successfully completed the program and received a non-custodial final sentence and 359 (80.5%) had been removed from the program and received a custodial final sentence. Of the 87 offenders who had successfully completed the program and received a non-custodial sentence, 48 (10.8% of those who had exited the program) had met the Court’s graduation criteria.[31]

    A study found that 43% of those who entered the drug court program were terminated for further offences or for non-compliance with program conditions.[32] However, in relation to recidivism, the study also found that treated subjects took longer to commit a range of offences than the control group and their offending rate was also lower.[33] The evaluation also found significant decreases in drug-use during the supervision period and this was maintained for some period of time.[34] The health and well-being of participants in the program were significantly improved. Overall, the evaluation found that the average cost for drug court participants was slightly less than for a comparable group who were not put on the program but sent to prison instead.[35]


    Victoria’s Drug Court is intended to have around 50 participants when fully functioning during its pilot phase. Even if a number of other courts are established around the state, they will not alone provide an answer to the drug/crime problem. However, what they might do is signal some significant changes in the way courts operate, particularly in relation to their non-adversarial approach, early intervention, access to services, on-going judicial supervision and interaction, inter-agency co-operation and the like.

    A major challenge is to determine which of the elements of the drug court program make it ‘work’, if indeed it does ‘work’. The New South Wales process evaluation found that most respondents agreed that the major factor in the drug court program was ‘the level of structure and support provided’.[36] It was the unique combination of services and resources which was the key to success, comprising teamwork, cooperation between agencies and continuity of care and supervision. Part of the success was due to the court structure and regime and the provision of coerced treatment.

    In each jurisdiction, the powers of a drug court, its target groups and levels of intervention will be dependent on what other options are available to police and courts from the time of arrest through to sentence. The courts represent only one tool in the state’s repertoire of responses to what appears to be an intractable social and legal problem. If they are to remain, they must find their appropriate niche in their own societies and within their own unique legal framework. They must also prove that they are at least as effective as imprisonment and not significantly more costly.

    [*] Arie Freiberg is Professor of Criminology, The University of Melbourne


    ©2002 Arie Freiberg (text)

    [1] See generally Makkai, T., ‘Drug Courts: Issues and Prospects’ (1998) 95 Trends & Issues in Crime and Criminal Justice; Makkai, T., ‘The Emergence of Drug Treatment Courts in Australia’, (2002) Journal of Substance Misuse and Use (forthcoming); Freiberg, A., ‘Australian Drug Courts’ (2000) 24 Criminal Law Journal 213.

    [2] Griffith, G., Police Powers and Drug Law Enforcement in New South Wales, 2001.

    [3] Freiberg, A., ‘Problem-oriented Courts: Innovative Solutions to Intractable Problems?’ (2001) 11 Journal of Judicial Administration 8.

    [4] Freiberg, A., ‘Problem-oriented Courts: Innovative Solutions to Intractable Problems?’ (2001) 11 Journal of Judicial Administration 8.

    [5] Victorian Drug Policy Expert Committee, Meeting the Challenge, Melbourne, 2000.

    [6] Victorian Drug Policy Expert Committee, Meeting the Challenge, Melbourne, 2000, p.150.

    [7] Heale, P. and Lang, E., ‘A Process Evaluation of the CREDIT (Court Referral and Evaluation for Drug Intervention and Treatment) Pilot Program’ (2001) 20 Drug and Alcohol Review 223, 224.

    [8] Freiberg, A., Sentencing Review: Drug Courts and Related Sentencing Options, Department of Justice, Victoria, 2001, pp.1-48.

    [9] National Association of Drug Court Professionals in the United States, Articles of Association, Article 2; Hora, P., Schma, W.G. and Rosenthal, J.T.A., ‘Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America’ (1999) 74 Notre Dame Law Review 439; Inciardi, J., McBride, D. and Rivers, J., Drug Control and the Courts, Sage Publications, Beverly Hills, 1996; Tauber, J., ‘Drug Courts: A Judicial Manual’ (1994) California Center for Judicial Education and Research Journal 3.

    [10] United States Department of Justice, Drug Courts Program Office, Defining Drug Courts: The Key Components, 1997, pp.7 and 9.

    [11] Drug Court Act 1999 (NSW).

    [12] Drug Rehabilitation (Court Diversion) Act 2000 (Qld); Sentencing Act 1991 (Vic).

    [13] Bail Act 1985 (SA).

    [14] Sentencing Act 1991 (Vic), s.18X.

    [15] Makkai, T., 1998, above, ref 1; Makkai, T., 2002, above, ref 1.

    [16] Sentencing Act 1991 (Vic), s.18ZF.

    [17] Sentencing Act 1991 (Vic), s.18ZG.

    [18] Tauber, J., ‘Drug Courts: A Judicial Manual’ (1994) California Center for Judicial Education and Research Journal 3.

    [19] Marlowe, D.B., and Kirby, K.C., ‘Effective Use of Sanctions in Drug Courts: Lessons from Behavioral Research’, (1999) 2 National Drug Court Institute Review 1; Satel, S.L., ‘Observational Study of Courtroom Dynamics in Selected Drug Courts’ (1998) 1 National Drug Court Institute Review 43.

    [20] Sentencing Act 1991 (Vic), ss.18ZJ and 18ZL.

    [21] Sentencing Act 1991 (Vic), s.18ZN.

    [22] Freeman, K., New South Wales Drug Court Evaluation: Health, Well-Being and Participant Satisfaction, Bureau of Crime Statistics and Research, Sydney, 2002; Freeman, K., Karski, R.L., and Doak, P., New South Wales Drug Court Evaluation: Program and Participant Profiles, Crime and Justice Bulletin No. 50, Bureau of Crime Statistics and Research, Sydney, 2000; Taplin, S., The New South Wales Drug Court Evaluation: A Process Evaluation, Bureau of Crime Statistics and Research, Sydney, 2002.

    [23] ‘Drug Court of New South Wales Review Committee Report’, Sydney, 2000.

    [24] Taplin, S., above, ref 22, p.65.

    [25] Drug Court of New South Wales Review Committee Report, Sydney, 2000, para 9.2; Taplin, S., above, ref 22, p.50.

    [26] First National Drug Treatment Court Workshop, Toronto Drug Treatment Court, September 2001.

    [27] Sentencing Act 1991 (Vic), s.18ZK.

    [28] Sentencing Act 1991 (Vic), s.18ZN.

    [29] Sentencing Act 1991 (Vic), s.18ZP.

    [30] Belenko, S., Research on Drug Courts: A Critical Review, The National Center on Addiction and Substance Abuse, Columbia University, 2001, p.9.

    [31] Personal Communication, John Feneley, Attorney-General’s Department, New South Wales, March 2002.

    [32] Lind, B., New South Wales Drug Court Evaluation: Cost-Effectiveness, Bureau of Crime Statistics and Research, Sydney, 2002, p.63.

    [33] Lind, B., above, ref 32, p.vii.

    [34] Freeman, K., above, ref 22, p.22.

    [35] Lind, B., above, ref 32.

    [36] Taplin, S., above, ref 2, p.80.

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