THERAPEUTIC JUSTICE IN TASMANIA Therapeutic Jurisprudence Problem Solving

THERAPEUTIC JUSTICE IN TASMANIA [Therapeutic Jurisprudence] [Problem Solving Courts] [Diversion Courts/Lists] [Solution-Focused decisions] Presented by Magistrate Glenn Hay to the COMMUNITY LEGAL CENTRES CONFERENCE - 15 November 2013

The Problem n n n n n Magistrates Courts deal with over 30, 000 matters per year - pressure of demand on the system. 20, 000 criminal matters per year All start in the Magistrates Court and 98% stay in this jurisdiction. Most offenders plead guilty and then we sentence them. Many defendants are multi repeat-offenders - recidivists. The revolving door. Courts often become the dumping ground for citizens with multiple problems otherwise unsolved by society. Suddenly those with health or substance abuse problems become justice problems. The merry-go-round of offending to feed the drug habit. Often offenders would be imprisoned and not treated at all and then end up back in the community that had not properly supported them in the first place. How to slow or brake the merry-go-round/revolving door?

PRISON STATISTICS n In 2003 - 457 prisoners per day n now the average is 522 prisoners per day n net operating expenditure per prisoner per day in 2003 - $167 n as at 31 January 2012 - $322. 85 ($118, 000 pa. ) Source – Productivity Commission’s Report on Gov’t Services 2012

PRISON STATISTICS n n n Prison population - 1700 in 2010 Recidivism - 57% of prisoners in 2007 were known to have served a sentence prior to their current prison term. In 2010 – approx 65%. 11% had been to prison more than once before. 93% of prisoners are male. 57% of all prisoners were under 35 years of age. Avg. age is 33 Of both males and females, 25 to 34 -year-olds had the highest imprisonment rates in 2007 (64% and 54% respectively per 100, 000 per year). 80% have not gone beyond year 8 – basically illiterate 80% were unemployed at the time of sentence. 75% have a chronic health problem. 39% have had a serious head injury 60% of those entering prison will identify alcohol and other drugs as being a significant contributor to their offending behaviour. 90% report severe alcohol intake issues. 25% have Hep. C and 10% contracted Hep. C in prison. 21% have a morphine addiction – only 1% of those needing treatment receive that treatment in prison. Marijuana is the most prevalent drug of addiction. 41% have a speed addiction. Opioides are a major problem because of prescribed medications. Co-morbidity issues - 98. 5% ATOD use and Mental Health Issues. 26% on antidepressants. 80% smoke. They are overwhelmingly young, male, poorly educated, unemployed and have high rates of mental illness, intellectual disability, substance abuse, physical disability and chronic disease.

The Solution n n “Judicial officers can help to make a difference for people appearing before them not only by according procedural fairness but also, despite the constraints of a busy list, by expressing concern and compassion for the situation of their fellow human beings and by using processes conducive to a therapeutic effect. This has the potential…. to promote public confidence in the court as an institution that listens, acts and responds to the needs of those it serves. It allows a judicial officer to take a more comprehensive and creative approach to determining cases. ” M. S. King [2003] 28 Alternative Law Journal @175

The Solution n n Participants in problem-solving diversion courts are seen as citizens who have offended and have offending-related problems (mental health, drugs, alcohol, anger, lack of maturity or experience in life) or who otherwise have problems with the law, but also as human beings who have strengths and insight into, and possible solutions for, their problems. Those who do not display such strengths and insight remain in the general lists and are dealt with in the more traditional ways with hopeful deterrence by fine or imprisonment or the like.

The Solution an Ethic of Care – diversion courts n n n n Need to brake the revolving door = win/win Rehabilitation by absenting the negative – offending; and imposing a positive – the ability to lead a happy, constructive and law-abiding life in the community. Involves new roles for judicial officers, lawyers and prosecutors. Minimises the adversarial process. Addresses issues underlying offending Involves a collaborative, team-based decision making process Requires judicial monitoring Develops community connections

What sentences can the court impose? Section 7 of the Sentencing Act provides: (a) record a conviction and order that the offender serve a term of imprisonment; or (ab) if the court is constituted by a magistrate, record a conviction and make a drug treatment order under Part 3 A (2007) in respect of the offender; or (b) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended; or (c) record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a community service order in respect of the offender; or (d) with or without recording a conviction, make a probation order in respect of the offender if the offender has attained the age of 18 years; or (e) record a conviction and order the offender to pay a fine; or (ea) in the case of a family violence offence, with or without recording a conviction, make a rehabilitation program order; or (f) with or without recording a conviction, adjourn the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, order the release of the offender; or (g) record a conviction and order the discharge of the offender; or (h) without recording a conviction, order the dismissal of the charge for the offence; or (i) impose any other sentence or make any order, or any combination of orders, that the court is authorised to impose or make by this Act or any other enactment.

The principles of Sentencing are to be found in S 3 which provides: n n n n (a) amend and consolidate the State's sentencing law; and (b) promote the protection of the community as a primary consideration in sentencing offenders; and (c) promote consistency in the sentencing of offenders; and (d) establish fair procedures for – n (i) imposing sentences on offenders generally; and n (ii) imposing sentences on offenders in special cases ; and n (iii) dealing with offenders who breach the conditions of sentences; and n (e) help prevent crime and promote respect for the law by allowing courts to – n (i) impose sentences aimed at deterring offenders and other persons from committing offences; and n (ii) impose sentences aimed at the rehabilitation of offenders; and n (iii) impose sentences that denounce the conduct of offenders; and (f) promote public understanding of sentencing practices and procedures ; and (g) set out the objectives of sentencing and related orders; and (h) recognise the interests of victims of offences.

Problem Solving Courts Diversion Lists An approach by the judicial officer which moves away from the immediate questions of guilt or innocence n n n n On-going judicial supervision Integration of service provision Direct engagement with defendants A non-adversarial approach Drug Diversion Courts (post plea) Mental Health Diversion Courts (pre plea) Family Violence Courts – FVOIP. Youth Justice Courts Contest Mention Courts Probation orders including FVOIP and Sober Driving Program Youth Justice community conferences Misuse of Drugs Act - cautions Conciliation and Mediation intervention. In civil or quasi-criminal matters eg Child Protection; discrimination. Community Courts Koori Courts (not in Tasmania but Sentencing Act and YJ Act and various Cw ’th Acts require aboriginality to be taken into account)

DRUG TREATMENT COURTS DTCs created in a response to the perception that the traditional adversarial criminal justice system does not adequately address the issues of non-violent drug offenders. These courts reject the adversarial model.

DRUG TREATMENT ORDERS WHAT ARE THEY? A Drug Treatment Order (DTO) is an unique sentencing order – the role of the Court, Prosecution and Defence Counsel extends beyond the final sentencing disposition. The Court continues to review offender progress during the order and CDO/prosecution/defence counsel continue to provide recommendations to a Magistrate on alterations or adjustments to the order that may benefit the client. This process is established through court review as a core program condition and the holding of case conferences.

How does your client get a DTO? Entry Criteria – DTO Offender is to be found/plead guilty of an imprisonable offence [s 27 B(1)(a)] The offence must not involve actual bodily harm that in the Court’s opinion is not minor harm [s 27 B(1)(a)(ii)] The offence must not be a sexual offence as defined in Part 3 A [s 27 B(1)(a)(i)], and the offender must not have any proceedings outstanding relating to sexual offences as defined in Part 3 A [s 27 B(1)(f)(i)]

How does your client get a DTO? [cont. ] The offender must not be subject to a sentencing order of the Supreme Court [s 27 B(1)(e)(i)] The offender must not be subject to a parole order under the Corrections Act 1997 [s 27 B(1)(e)(ii)] The offender must not be subject to another Drug Treatment Order [s 27 B(1)(e)(iii)] The offender must not have any proceedings outstanding relating to the infliction of actual bodily harm [s 27 B(1)(f)(ii)]

Role of Defence Lawyers – A judgment call for your client Identify that your client has a drug problem and fits other eligibility criteria for referral into one of the three diversion streams. Provide information to the client on: The program generally, including the necessity of a plea or finding of guilt; The assessment process specifically; The need to provide written consent for referral to assessment in the case of a DTO. Facilitate referral to the program by: Liaising with the police at point of arrest; or Liaising with the CDO or prosecution prior to bail hearing

[cont. ] Suggest CMD as an option to the Magistrate at the appropriate hearing, also advising that offender has been informed about the program, is potentially a suitable candidate based on the offence, and is willing to undertake assessment for the program. Ongoing representation in the case of a DTO – Attending case conferences and contributing to discussion on an offender’s progress; Attending court reviews to represent client ’s interests; Liaison with offender on progress through the program; Adjustment of core/program conditions; Encouraging compliance and involvement during the life of the DTO

What is the role of the prosecutor? Identify that offender fits eligibility criteria for referral into one of the three diversion streams. Facilitate & Non-obstructionist. Ongoing representation in the case of a DTO – • Attending court reviews to provide accountability for criminal behaviour and ensure that community safety is not compromised; • Attending case conferences and contributing to discussion on an offender’s progress; • Generally supportive of treatment process; • Focus on long-term recovery and rehabilitation; • Facilitate the rights and interests of victims; • Encouraging compliance and involvement during the life of the DTO; • Adjustment of core/program conditions; • Non-compliance and cancellation.

Sanctions and Incentives - the carrot and stick approach

What happens if the participant offends during a DTO? Subsuming a Term of Imprisonment into the Custodial Part of the DTO [s 27 P] This provision allows a Magistrate to hear an offence that may have been committed either before or after a DTO was made and subsume a term of imprisonment into the existing DTO. Where an offender is subject to a DTO and the: Court finds an offender guilty of an offence, and Court imposes a term of imprisonment for the offence, and Court does not suspend the sentence either in whole or in part, and Length of the sentence is less than the remaining length of the custodial part of the DTO, and Offence is one for which the Court could have made a DTO if the offender were not already subject to a DTO

[cont. ] then the Court can either: Subsume the sentence into the custodial part of the order, or Cancel the treatment and supervision part of the DTO and either: ▪ ▪ Activate some or all of the custodial part of the order, or Cancel the custodial part of the DTO and, other than by making an order of imprisonment, deal with the offender for each offence in respect of which the DTO was made in any way in which it could deal with the offender had it just found the offender guilty of the offence.

How do DTO conclude? Circumstances where a DTO may be cancelled – Cancellation of an order where an offender’s circumstances were not accurately presented [s 27 Q(1)(a)] Cancellation of an order where an offender’s circumstances have materially changed [s 27 Q(1)(b)] Cancellation of an order for withdrawal of consent [s 27 Q(1)(c)] Cancellation of an order where the treatment and supervision part of the order is unlikely to achieve one or more of the purposes for which the order was made (repeated failures) [s 27 Q(1)(d)] Cancellation of an order by committing an offence punishable by a term of imprisonment exceeding 12 months [s 27 O] Cancellation of an order on successful completion of the Drug Treatment Order [s 27 L] Cancellation of an order after two years [s 27 R]

How do DTO conclude? n n n Graduation Program lasts 18 to 24 months (max) Offence free and drug free for minimum of 90 days preferably 180 days.

What next Drunk drivers Over-consumption of alcohol is the most prevalent substance abuse and is more likely than not to be present with other co-morbidities – should alcohol be part of the drug/MH list?

Drunk Driver Courts n n n In many countries including NZ, often known as DWI (Drive Whilst Intoxicated) or DUI (Drive Under Influence) Courts. For hardcore drunk drivers with priors or in excess of. 15 and often alcohol dependent Treatment orders include use of ignition interlock devices sometimes with photo id. Orange County California had recidivism rates of nearly 25% in 2004 but have now reduced that to 4. 6% after DWI intervention. Tasmania Magis Court hopes to introduce similar in next 12 months.

THE MENTAL HEALTH LIST

How the List started n n Court initiated: collaboration b/w dedicated magistrate, FMHCLO police prosecutors and legal practitioners Re-arrangement of Court lists to divert defendants with mental illness into specialist sittings

Key Principles n n n Based on a ‘therapeutic jurisprudence’ approach Assisting people to address the mental health needs related to their offending behaviours Improving community safety and reducing re-offending Improving the psychological and general well being of people on the List Reducing the use of criminal justice punishments for health related behaviours

Procedure n n n Consent: Participation in the program is at all times voluntary and any assessment will only occur after the potential participant or their legal guardian has provided written consent Referral: A person can refer themselves into the program or be referred into it by their Solicitor, Tas. Police (including Prosecutions), Magistrates, Mental Health Case Managers, Other Service Providers, or Anyone with a genuine interest in the welfare of the person Assessment: In order to determine whether a person is suitable for the program they must first undergo an assessment interview by a Forensic Mental Health Court Liaison Officer

Procedure (cont. ) n n n Court Diversion: Once assessed as eligible and suitable by the FMHCLO, the person will appear before the Magistrate presiding over the List. The Magistrate will, on the basis of information provided to the Court by the FMHCLO, police and defence lawyer, decide whether to accept a person on to the program and tailor an order—usually a bail order—best suited to addressing the person ’s mental health needs Court Review: During a person’s diversion program, a series of court reviews will take place, which the person will be required to attend. This is a relatively informal process that provides an opportunity for direct interaction with the Magistrates Sentencing: At one of the reviews a final date will be given for the person to return to Court for finalisation of their matters. A Magistrate may take into account the person’s success or otherwise in the diversion program when considering a final sentence

Key Players n n n Magistrates Forensic Mental Health Court Liaison Officers Prosecution Legal Aid Private Legal Practitioners

Magistrates n n n Encouragement Support Sympathy Listening Praising

Police Prosecutors n n n Dedicated police prosecutor allows the prosecutor to develop a relationship with the FMHCLO and the defence counsel Everyone ‘…is on the same wave length. ’ (PP) ‘I certainly see it as something that is far more just and appropriate. So if a person has a mental illness and their mental illness had a significant impact on the offence or offending behaviour, then that’s the thing that needs to be targeted – their health. So if Health and Justice can come together and work together well on that, I think that’s fabulous. ’ (PP)

Legal Practitioners n n CLC / Legal aid / private practitioner Still speak on behalf of the defendant in many circumstances Enters pleas in mitigation when matter is being finalised. Acts as an interpreter to ensure that Def is aware of what is being decided, Def’s obligations and bail conditions

Forensic Mental Health Court Liaison Officers n n n Conduct assessments Refer participants to appropriate service providers Monitor level of engagement/compliance Make recommendations about changes to treatment regimes and/or bail conditions Liaise with prosecution and defence to determine progression of the case and date of finalisation

On Magistrates: Offender Interviews n n n ‘They could tell that I was really worked up and they accommodated it…they got my partner to come over and sit next to me on the big round desk…they were very aware of how I was feeling I think. ’ ‘The magistrate, he was terrific. He was really good. He was understanding of me (sic) mental illness and how I’d become to get mentally ill and he was very supportive actually. ’ ‘He referred to things so that (my daughter) understood why she was there. And when you are on medication you get a bit hazy about things that have happened, so it was good that he mentioned things like that. ’

On FMHCLOs - Offender Interviews n n ‘The FMHCLO are, in my view, the ones doing all the work. ’ ‘She was very compassionate. ’ ‘Yeah, she’s terrific. Yeah she’s really good with the people that she deals with…I watch her and she’s really, umm how would you put it, she tries hard. ’ ‘She would always…follow up on anything that was discussed and…she would ring up and explain stuff to me before and after meeting with the lawyer. She was really good. ’

On Legal Practitioners – Offender Interviews n n n ‘I can understand about 70% of (what is said in court), but when they go through this paragraph and that paragraph, I’ve got no idea, but after court the lawyer comes out and he sort of explains it to me in layman’s terms. ’ ‘The solicitor was real good; they worked well with the mental health team. ’ ‘She (explained what was being discussed) that day when I went to court and I couldn’t understand what the judge was saying. She got up and talked for me’

Collaboration & Cooperation Operational n. In the initial period between referral and appearance informal discussions take place between the FMHCLO, prosecutors and defence counsel. n. Once the FMHCLO’s recommendation of eligibility/suitability confirmed by the Magistrate, and the appropriate order made, the quality and integrity of the health interventions are maintained by the role of the FMHCLO.

n Monthly case management meetings between the FMHCLO, prosecution and lawyers to review progress Management n The List is supported by Tasmania Police, the Legal Aid Commission, and Forensic Mental Health Services, all of whom play vital courtbased roles to enable it to function effectively

Outcomes n n n Offers a more therapeutic response to defendants with mental health issues Reducing re-offending rates of participants and improving community safety - a 2009 evaluation found that 79% of participants had reduced their offending levels post MHDL participation Improving coordination between the criminal justice agencies and health service providers

Outcomes continued n n Based on the success of Hobart, a Mental Health Diversion List commenced in the Launceston Magistrates Court in March 2010 and in 2013 into NW Coast in a more limited way. MHDL received a Certificate of Merit in October 2010 as part of the Australian Crime and Violence Prevention Awards and achieved a top 10 ranking in the national crime prevention awards

Statistics – Hobart (January) Clients on the list since 2007 = 312 Clients successfully completed the list = 273 (or 87. 5%) Gender Male = 192 (or 61%) Females = 122 (or 39%)

Statistics continued n Distribution of Sentences: n 50% = Good behaviour bond without conviction recorded n 33. 7% = Good behaviour bond with conviction recorded n 8. 3% = Charges dismissed n 7. 9% = Tender No evidence

Statistics continued n Diagnoses (including multiple diagnoses): n schizophrenia n bi-polar disorder n depression n post-traumatic stress disorder n personality disorder n alcohol/drug dependence n psychosis not otherwise specified n anxiety n obsessive compulsive disorder n other (delirium, low IQ, ABI, disassociation, etc. ) 28% 14% 9% 6% 5% 4% 4% 3% 1% 26%

WHAT NEXT? n n n We are broadening MH lists to include Intellectual Disability and Acquired Brain Injury defendants? Possible changes to Sentencing Act to permit deferred sentencing – gives more options. $ resource is a major issue.

The Court is adapting to new challenges - see our website n http: //www. magistratescourt. tas. gov. au/