Vol.2 Issue: 4 - Drugs and the Law

Continuing its commitment to provide education and training to priests and pastoral associates of the Archdiocese, Mary of the Cross Centre conducted a seminar day in October with a focus on legal issues and drug use. Two of the presenters are well qualified to speak on this topic. Natalie Mikkleson is the Drug Outreach Lawyer for the Fitzroy Legal Service, while Wendy Taylor is the Executive Director of the Court Network.

The position which Natalie has held for 14 months is a unique legal initiative, which is said to be the first of its type in Australia. The position came about in recognition of the fact that a significant section of the community was missing out on legal advice and support as they were unable to access conventional services that already existed. Natalie provides legal advice, representation, community development and other forms of support for people who are drug users or are at risk of using drugs. She seeks to provide services to young people, culturally and linguistically diverse communities as well as those with dual diagnosis (a mental health issue as well as substance use), those who are homeless and those in public housing and rooming house accommodation. She has had extensive legal experience including working in rural Victoria.

Natalie began her talk with reference to the "war on drugs". This philosophical perspective has led to the idea of a need to "get tough on crime". However, the legal system is now generally beginning to accept and acknowledge that "getting tough on crime" is not the most effective way to achieve positive outcomes for the community and drug user alike. One of the sentencing guidelines outlined in the Sentencing Act is "deterrence". a clear example of "general deterrence" in action is when the court jails a defendant to "send out the message that this behaviour will not be tolerated". There has been a 52% increase in the prison population in Australia from 1990 to 2000, while in the 12 months from March 2000 - 2001 Victoria had the fastest growing prison population (with an 8% increase) in Australia. However locking people up does not appear to be working when one considers the facts: at least two-thirds of all people who come before the courts have drug or alcohol use as a precipitating factor; and the majority of Victoria's prisoners are serving sentences less than 12 months. Many are "recidivists", that is, repeat offenders who have served, or in the future will serve, other short periods of incarceration.

It is a common misconception that prisoners receive some form of appropriate drug treatment in jail. However, this is often not the case. Due to an increase in the prison population, a significant number of sentenced prisoners and defendants on remand are forced to remain in suburban and regional police cells, often in cramped and over-crowded conditions, for lengthy periods not envisaged when the police holding cells were originally constructed.

A defendant on remand, waiting for his case to come before the court, could spend up to a month in one police cell without any drug treatment, in 24 hour fluorescent lighting, no natural light or air, no exercise and not being allowed to smoke. There could be one and a half times as many prisoners in the cell as beds available and many of the prisoners will be suffering from psychiatric, medical and behavioural problems, exacerbated by the conditions. The defendant could then be sentenced and spend another 4 weeks in the same police cell before doing a tour of other suburban/regional cells before finally reaching the Melbourne Assessment Prison (MAP). Following the MAP he could then be moved twice to other prisons, having to put his name down on a waiting list to receive counselling. You can understand that if he were serving a 3-month jail sentence, there would not be much time or scope for rehabilitation.

Natalie then talked about the new Drug Court. This has been set up in Dandenong and is being trialed as a three-year pilot scheme. It represents a fundamental shift in the way the courts will deal with drug or alcohol linked offenders. It seeks to protect the community by focussing on the rehabilitation of offenders through bringing stability to their chaotic lifestyles and reintegrating them into the community. This initiative looks not just at the offender but also at the effect these issues are having on the community. The Drug Court aims to treat the offender's drug-using problem so that they are able to cope with the "ups and downs" of life and not return to their crutch of using drugs when things don't go well.

In order to be eligible to be placed on a Drug Treatment Order the defendant must have committed the offence under the influence of drugs or in order to support an addiction. The defendant must plead guilty and an immediate jail sentence must be the only sentence available to the court. The Drug Court will not deal with sexual offences nor will it accept offenders charged with committing assaults which result in actual physical injury.

There are two components to a Drug Treatment Order -a treatment and supervision component and a custodial aspect. The custodial component is suspended to allow the defendant to comply with treatment. The treatment component is very stringent and demanding and it can be very difficult for the participant to comply with, given that most offenders will have typically led chaotic lifestyles. It is accepted in the Drug and Alcohol field that a significant number of users will take more than ten attempts at rehabilitation before they are successful, which helps one to understand the enormity of the challenge that participants face. They need a lot of resolve to be able to see it all the way through. Non compliance with treatment results in the custodial component of the order being activated and the defendant will go to jail.

The feed-back to date with respect to the Drug Court has been positive and if this pilot program is successful Drug Courts will be introduced in other areas to divert people from the prison system.

Another diversion program that has been implemented is the Drug Diversion Program which is the domain of the police. Police have the discretion to caution an offender, rather than charge them. The program allows police to issue a caution if the offender is found in possession of a "small quantity" of drugs for personal use. If they possess the drug for the purpose of trafficking (selling) they will not be eligible. For example, with respect to cannabis, the person must possess less than 50 grams (which is the amount accepted by legislation to be a "small quantity") and it must be for personal use. A person can have up to two cautions for cannabis use and up to three cautions for all other illicit drugs. In relation to a caution administered for illicit drugs other than cannabis, the police must contact the Drug Diversion Appointment Line (DDAL) to arrange an appointment for the offender to attend for assessment. If the person fails to attend the appointment then the caution will be voided and they will be charged.

These initiatives highlight the need for readily accessible treatment programs. The government therefore has a responsibility to continue to place priority on funding for treatment programs.

Another program is CREDIT, whereby a person can participate in treatment whilst on bail, prior to entering a plea of guilty or not guilty. The defendant effectively builds up "credit" by adhering to a regime designed for them by the court credit clinician, such as attending drug and alcohol counselling. It also involves regular appearances before the magistrate, who listens to progress reports. Successful completion of the program will be taken into account at sentencing and will usually result in a lesser sentence. To participate in CREDIT the defendant must have a drug problem and must be charged with a non-violent offence and be on bail. Anyone can make a referral to CREDIT, including the police, a magistrate, a support worker, a lawyer, the individual or their family/friends.

In response to a question about what is in place to support families of these offenders, Natalie stated that, generally, there was very little help for them. She suggested that this is an area that required addressing and would be an issue for the future as these families experienced a great deal of pain and confusion. She also recommended that if asked to give a character reference it is essential to be honest. It is important to help the magistrate to see this person as an individual and that the person is part of a family who longs to support them, care for them and assist them through the judicial process. The magistrate needs to know that the family is aware of the seriousness of the situation. Presence of the family in the court indicates to the magistrate that they are genuinely concerned for the offender and it may even tip the scales between a custodial sentence and a non-custodial sentence.

The courts are now beginning to regard treatment as a form of harm minimisation. While the traditional concept of total abstinence still prevails, the courts - through the various initiatives already outlined - are beginning to recognise that treatment is required to achieve this goal.

The next issue of At the Cross will have information about the Court Network and the services it provides for people attending the court.

Anne Marmion