Published by Geoff Harrison | 19 September 2023
Under the Drug Court Act 1998 ('the Act') an "eligible person" is defined within s5 of the Act and r4 of the Regulations; and an "elgible convicted offender" is defined within s5A of the Act and r5 of the Regulations. The relevant referring courts are the Local Court and District Court as per r6. Another alternative to program available to the Local Court is the MERIT Program, which is a 12 week program that the magistrate will take into consideration upon completion at the time of sentencing.
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Extracted Legislation:
DRUG COURT ACT 1998 - SECT 5
Definition of "eligible person"
(1) A person is an eligible person if:
(a) the person is charged with an offence, other than an offence referred to in subsection (2), and
(b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted, be required to serve a sentence of full-time imprisonment, and
(c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and
(d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985 ) or other drugs prescribed by the regulations, and
(e) the person satisfies such other criteria as are prescribed by the regulations.
(2) A person is not an eligible person if the person is charged with:
(a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Chapter 5 of the Criminal Procedure Act 1986 ) is capable of being dealt with summarily, or
(b) an offence involving violent conduct or sexual assault, or
(c) any other offence of a kind prescribed by the regulations.
DRUG COURT ACT 1998 - SECT 5A
Definition of "eligible convicted offender"
(1) A person is an eligible convicted offender if:
(a) the person is convicted of an offence, other than an offence referred to in subsection (2), and
(b) except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed:
(i) the unexpired non-parole period of the sentence was a period of at least 18 months, and
(ii) the unexpired total sentence was a period of not more than 6 years, and
(d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985 ) or other drugs prescribed by the regulations, and
(e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and
(f) the person satisfies such other criteria as are prescribed by the regulations.
(1A) Subsection (1) (b) does not prevent a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court).
(2) A person is not an eligible convicted offender if:
(a) the offence for which the person has been convicted involved the use of a firearm, or
(b) the person has been convicted at any time of any of the following:
(i) murder, attempted murder or manslaughter,
(ii) sexual assault of an adult or child or a sexual offence involving a child,
(iii) any offence involving the violent use of a firearm,
(iv) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act,
(v) any offence prescribed by the regulations for the purposes of this section.
(3) A person is not an eligible convicted offender if, in the opinion of the Drug Court:
(a) the person suffers from a mental condition, illness or disorder that:
(i) is serious, or
(ii) leads to the person being violent, and
(b) the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program.
DRUG COURT ACT 1998 - SECT 6
Courts may refer persons to Drug Court during proceedings for offence
(1) This section applies to such courts and proceedings as are prescribed by the regulations.
(2) It is the duty of a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court:
(a) to ascertain whether the person appears to be an eligible person, and
(b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence, and
(c) if so, to refer the person to the Drug Court to be dealt with for the offence.
(3) The power conferred on a court by this section is to be exercised as soon as practicable after the person first comes before the court in connection with the offence, but may be exercised at any time:
(a) in the case of a Magistrate conducting committal proceedings under the Criminal Procedure Act 1986 , before the Magistrate has committed the person for trial or sentence in relation to that offence, and
(b) in any other case, before the person is sentenced or re-sentenced for the offence.
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DRUG COURT ACT 1998 - SECT 7A
Persons accepted into program in relation to offence
(1) This section applies to a person who has been referred to the Drug Court under section 6.
(2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters:
(a) that the person is an eligible person,
(b) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence,
(c) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act,
(d) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations,
(e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section,
(f) that the person has been informed of the Drug Court's powers under Division 2 and of the respective consequences, as regards the sentence to be imposed under section 12, of the person's compliance or non-compliance with a program,
(g) that any person (an
"affected person" ) with whom it is likely the person would reside during the period of the person's participation in a program under this Act has consented in writing to the person residing with the affected person during that period.
(3) Subject to subsection (4), the Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999 .
(4) Sections 44- 48 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the conviction and sentencing of a person under this section.
(5) On or within 14 days after sentencing the person, the Drug Court:
(a) must make an order imposing on the person the conditions that the person has accepted as referred to in subsection (2) (e) (the person's
"program" ), and
(b) must make an order suspending execution of the sentence for the duration of the person's program (the person's
"suspension order" ).
(6) An order referred to in subsection (5) (a) or (b) may be made in the absence of the person in respect of whom it is made.
(7) The kinds of conditions that the Drug Court may impose on the person under this section are as follows:
(a) conditions relating to conduct and good behaviour,
(b) conditions relating to attendance for counselling or other treatment,
(c) conditions relating to the supervision of the person for the duration of a program under this Act,
(d) conditions relating to drug testing that the person must undergo,
(e) conditions relating to residence, association with other persons or attendance at specified locations,
(f) conditions relating to involvement in activities, courses, training or employment for the purpose of promoting the re-integration of the person into the community,
(g) conditions relating to conferring rewards of the kind referred to in section 16 (1),
(h) conditions relating to the imposition of sanctions of the kind referred to in section 16 (2),
(i) any other kinds of conditions that may be prescribed by the regulations,
(j) such other conditions as the Drug Court considers appropriate in the circumstances.
(8) A person who is convicted and sentenced by the Drug Court under this section may, at the same time or any later time:
(a) be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence, or
(b) be dealt with in proceedings under:
(i) section 107C of the Crimes (Administration of Sentences) Act 1999 on the revocation of a community correction order, or
(ii) section 108C of that Act on the revocation of a conditional release order, or
(iii) section 98 or 99 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) on the revocation of a good behaviour bond imposed under section 12 of that Act (as previously in force), whether or not the person has been referred to the Drug Court under section 7 in relation to the failure to comply with the conditions of the good behaviour bond, or
(c) be dealt with under both paragraphs (a) and (b).
(9) Subsections (5) and (6) apply to a sentence under subsection (8) in the same way as they apply to a sentence under subsection (2).
(10) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section.
(11) A suspension order does not operate to suspend any period of disqualification from holding a driver licence imposed by or under the road transport legislation within the meaning of the Road Transport Act 2013.
(12) For the purposes of subsection (2) (g):
(a) the consent of children below a prescribed age, and
(b) the consent of persons suffering a prescribed disability,
may be given on their behalf by such other persons as the regulations may determine or may, if the regulations so provide, be dispensed with.
(13) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only.
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DRUG COURT ACT 1998 - SECT 12
Imposition of final sentence
(1) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence.
(2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration:
(a) the nature of the drug offender's participation in his or her program, and
(b) any sanctions that have been imposed on the drug offender during the program, and
(c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment:
(i) under the sentence, or
(ii) under the condition of the program arising under section 8A.
(3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence:
(a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or
(b) by making an order confirming the initial sentence.
(4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence.
(5) For the purpose of making an order under subsection (3) in relation to an initial sentence imposed before the commencement of this subsection, subsections (3) and (4) have effect as if the amendments made to the Crimes (Sentencing Procedure) Act 1999 by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 were in force when the initial sentence was imposed.
DRUG COURT ACT 1998 - SECT 18B
Courts to refer eligible convicted offenders to Drug Court
(1) This section applies to such courts as are prescribed by the regulations.
(2) It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence of imprisonment imposed on the person by some other court (whether or not on the same terms as the other court):
(a) to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and
(b) if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order.
(2A) The duty imposed on a court by this section does not apply to a court on determining an appeal (an
"appeal court" ) if the person whose sentence is confirmed in the appeal is already the subject of a compulsory drug treatment order as a consequence of a referral made to the Drug Court by the court that imposed the sentence confirmed by the appeal court.
(2B) However, if the person whose sentence is confirmed by the appeal court is not already the subject of a compulsory drug treatment order, the duty imposed by this section applies to the appeal court, whether or not the court that imposed the sentence confirmed by the appeal court referred the person to the Drug Court under this section.
(3) The duty imposed on a court by this section is to be exercised as soon as practicable after the person is sentenced to imprisonment or the appeal is dealt with.
(4) The registrar or clerk of a court that refers a person to the Drug Court under this section must give to the registrar of the Drug Court such documents and materials prescribed by the regulations relating to the person as are requested by that registrar.
(5) No appeal lies against a court's decision to refer or not to refer a person to the Drug Court for a determination as to whether the person should be the subject of a compulsory drug treatment order.
(6) For the purposes of this section, an
"appeal" includes an application for annulment of sentence in so far as it relates to a decision referred to in subsection (5).
DRUG COURT ACT 1998 - SECT 18C
Compulsory drug treatment detention
(1) The Drug Court may make an order directing that an eligible convicted offender serve the offender's sentence of imprisonment by way of compulsory drug treatment detention.
(2) If an eligible convicted offender whose parole order has been revoked is referred to the Drug Court by the State Parole Authority under section 18BA, the Drug Court may make a new compulsory drug treatment order in respect of the offender.
(3) When making an order under subsection (2), the Drug Court must have regard to the circumstances of the revocation of the offender's parole order, including any charge or conviction for an offence committed by the offender while serving any sentence by way of compulsory drug treatment detention or while on release on parole.
DRUG COURT ACT 1998 - SECT 18D
Restriction on power of Drug Court to make compulsory drug treatment orders
(1) The Drug Court must not make a compulsory drug treatment order with respect to an offender's sentence of imprisonment unless:
(a) the Drug Court has referred the offender to the multi-disciplinary team for assessment as to the eligibility and suitability of the offender for compulsory drug treatment detention and has had regard to the contents of the assessment report made by the team under section 18E, and
(b) the Drug Court is satisfied:
(i) that the offender is of or above the age of 18 years, and
(ii) that the offender is an eligible convicted offender, and
(iii) that the offender is a suitable person to serve the sentence by way of compulsory drug treatment detention, and
(iv) that it is appropriate in all of the circumstances that the sentence be served by way of compulsory drug treatment detention, and
(v) that there is accommodation available (or is likely to be available within 14 days) at the Compulsory Drug Treatment Correctional Centre for the offender to serve the sentence by way of compulsory drug treatment detention, and
(vi) that the offender's participation in the program will not damage the program or any other person's participation in it.
(2) If the Drug Court declines to make a compulsory drug treatment order in relation to an eligible convicted offender's sentence on the ground that the offender's participation in the program will damage the program or any other person's participation in it (as referred to in subsection (1) (b) (vi)), the Drug Court may:
(a) revoke any statutory parole order under section 158 of the Crimes (Administration of Sentences) Act 1999 in relation to the offender, and
(b) notify the State Parole Authority of the decision to decline to make the order and the circumstances in which it was made.
(3) The Drug Court may, for any reason it considers sufficient, decline to make a compulsory drug treatment order despite the contents of an assessment report.
(4) No appeal lies against the Drug Court's decision to make or not to make a compulsory drug treatment order.
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