22. Drug treatment orders

Drug treatment orders have been in existence and operating in the Magistrates Court for some time. The amendments to the Sentencing Act 1997 which came into force on 8 February 2017 have been extended to the Supreme Court (ss27A-27X).

Drug treatment orders (DTOs) are not an available sentencing option to a judge if:

• the offences are sexual offences
• the offences involve the infliction of actual bodily harm that, in the court’s opinion, was not minor harm (bodily harm includes psychological harm) (see Tasmania v Joseph TASSC 23)

A judge would need to be satisfied on the balance of probabilities that:

• the offender has a demonstrable history of illicit drug use; and
• illicit drug use contributed to the commission of the imprisonable offence(s).

A judge can only make a DTO if he considers that, were he not making the DTO, he would sentence the offender to a term of imprisonment and would not have suspended the sentence, either in whole or in part.

The court must receive and consider a DTO assessment report on the offender.

A DTO cannot be made if the offender is subject to a parole order or another DTO or if there are pending proceedings in relation to sexual offences or offences involving actual bodily harm.

Further, a court must not make a DTO unless it is satisfied:

• in all the circumstances that it is appropriate to do so
• that the facility likely to be used for the treatment and supervision is reasonably accessible to the offender
• that there is sufficient staff in respect of that facility that is likely to be used for the treatment and supervision of the order to be able to provide the treatment and supervision
• there will be sufficient staff and resources to enable the treatment supervision of the offender to be provided when he or she is treated in the facility

The offender must agree in writing to the making of the order and to comply with the treatment supervision part of the order.

In determining whether it is appropriate to make a DTO a major consideration is the seriousness of the offence for which the accused is being sentenced. In Tasmania v Joseph [2017] TASSC 23 at [26]-[31] Brett J said:

Section 27B(3)(a) provides as follows:

(3) However, the court must not make the drug treatment order unless —

(a) it is satisfied in all the circumstances that it is appropriate to do so; ...

This provision is mandatory in its operation (see the Acts Interpretation Act 1931, s 10A). Accordingly, unless the court is satisfied that it is in all the circumstances appropriate to make a drug treatment order, it must not do so.

To determine whether it is appropriate to impose such an order, it is necessary to consider whether the order, as a sentence, will appropriately respond to the various sentencing considerations relevant in the circumstances of the particular case. The variety and potential conflict between the aims of sentencing applicable in a particular case were recognised by the High Court in Veen v The Queen (No 2) (1988) 167 CLR 465 at 476:

However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

A drug treatment order is a sentencing option which places emphasis on the rehabilitation of the offender. It is not without punitive effect because it will require, on the part of the offender, onerous application to the program put in place by the order, and carries with it the potential for activation of the custodial component of the order in the event of default. However, it is still an alternative to imprisonment, where imprisonment would otherwise be the outcome. If a drug treatment order is made, the court is making a choice to place emphasis on rehabilitation as the primary sentencing aim in preference to other sentencing objectives such as general deterrence and retribution. It may be argued that general deterrence is given effect by the custodial component of the order, and the onerous requirements of the treatment and supervision part of the order, and, further, that specific deterrence is also achieved by the custodial component of the order. It might also be argued that a person who otherwise meets the criteria for the making of a drug treatment order, with the appropriate commitment and expectation of success of that order, is not an appropriate vehicle for general deterrence. However, the primary focus of the order is rehabilitation, and, as it is a more lenient sentencing order than imprisonment, other punitive aims such as general deterrence are necessarily given less emphasis.

The objective seriousness of the crime will affect the relative emphasis placed on competing considerations in the process of determining sentence. Until recent amendments extended the power to make a drug treatment order to the Supreme Court, such an order could only be made in respect of offences dealt with in the summary jurisdiction. This placed an inflexible limit on the seriousness of offences in respect of which a drug treatment order could be made. The use of such orders only in respect of less serious offences is consistent with the aims expressed in the extract from the second reading speech relating to the 2007 amendments referred to above.

With the extension of this sentencing option to cases dealt with by the Supreme Court, there is no express statutory restriction on when an order can be made, by reference to the objective seriousness of the crime, apart from the pre-existing provisions of s 27B(1). Notwithstanding this, as already discussed, in order to be satisfied that a drug treatment order is appropriate in all of the circumstances, the court will need to be satisfied that the order will properly respond to the various aims of sentencing appropriate to the case. The result, in some cases, may be that, having regard to the seriousness of the crime, the court cannot be satisfied that a drug treatment order is appropriate. (Emphasis added)

Once the above prerequisites are met and the DTO is made, the core conditions set out in s27G are attached to the order. Other conditions can also be attached (s27H).

DTOs will be made by the sentencing judge and administered and managed by the Magistrates Court (s27QA).
There are limited places for drug treatment participants. Currently numbers are limited to 40 in the South, 20 in the North and 20 in the North West. These numbers would include those on orders pursuant to a magistrate’s order.

It would see a judge adjourn the matter to the Magistrates Court. Dates for DTO court will need to be obtained from the Magistrates Court. The matter can then be forwarded to the relevant Police Prosecution Service to deal with in the Magistrates Court. The offender will then appear regularly before the court for review of their progress. The Court Diversion Officers provide the court with progress reports for each offender. A magistrate may also convene case conferences to an offender subject to a DTO is progressing. These conferences usually take place in the absence of the offender. During these conferences the parties discuss the offender’s compliance or lack thereof, whether sanction days should be imposed or whether reward days should be afforded to the offender.

Section 27QA(2) provides that the Magistrates Court may refer a matter back to the Supreme Court if it is of the opinion that the Supreme Court ought to consider whether to deal with the offender under the provisions of this Part. This can include cancellation of the order pursuant to s27L or contraventions of the order under s27M or for committing further certain offences (s27O).