THERAPEUTIC JUSTICE IN THERAPEUTIC JUSTICE IN TASMANIATASMANIA

[Therapeutic Jurisprudence][Therapeutic Jurisprudence][Problem Solving Courts][Problem Solving Courts][Diversion Courts/Lists][Diversion Courts/Lists]

[Solution-Focused decisions][Solution-Focused decisions]

Presented by Magistrate Glenn Hay to the Presented by Magistrate Glenn Hay to the COMMUNITY LEGAL CENTRES COMMUNITY LEGAL CENTRES CONFERENCE - 15 November 2013CONFERENCE - 15 November 2013

The ProblemThe Problem

Magistrates Courts deal with over 30,000 matters per year - pressure Magistrates Courts deal with over 30,000 matters per year - pressure of demand on the system.of demand on the system.

20,000 criminal matters per year20,000 criminal matters per year All start in the Magistrates Court and 98% stay in this jurisdiction.All start in the Magistrates Court and 98% stay in this jurisdiction. Most offenders plead guilty and then we sentence them.Most offenders plead guilty and then we sentence them. Many defendants are multi repeat-offenders - recidivists. Many defendants are multi repeat-offenders - recidivists. The revolving The revolving

door.door. Courts often become the dumping ground for citizens with multiple Courts often become the dumping ground for citizens with multiple

problems otherwise unsolved by society. Suddenly those with health problems otherwise unsolved by society. Suddenly those with health or substance abuse problems become justice problems. or substance abuse problems become justice problems.

The merry-go-round of offending to feed the drug habit.The merry-go-round of offending to feed the drug habit. Often offenders would be imprisoned and not treated at all and then Often offenders would be imprisoned and not treated at all and then

end up back in the community that had not properly supported them end up back in the community that had not properly supported them in the first place.in the first place.

How to slow orHow to slow or brake brake the merry-go-round/revolving door?the merry-go-round/revolving door?

PRISON STATISTICSPRISON STATISTICS

In 2003 - 457 prisoners per dayIn 2003 - 457 prisoners per day

now the average is 522 prisoners per now the average is 522 prisoners per dayday

net operating expenditure per net operating expenditure per prisoner per day in 2003 - $167prisoner per day in 2003 - $167

as at 31 January 2012 - $322.85 as at 31 January 2012 - $322.85 ($118,000pa.)($118,000pa.) Source – Productivity CommissionSource – Productivity Commission’’s Report on Govs Report on Gov’’t t Services 2012 Services 2012

PRISON STATISTICSPRISON STATISTICS Prison population - 1700 in 2010Prison population - 1700 in 2010 Recidivism - 57% of prisoners in 2007 were known to have served a sentence prior 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 to their current prison term. In 2010 – approx 65%. 11% had been to prison more than once before.than once before.

93% of prisoners are male. 93% of prisoners are male. 57% of all prisoners were under 35 years of age. Avg. age is 3357% 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 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).in 2007 (64% and 54% respectively per 100,000 per year). 80% have not gone beyond year 8 – basically illiterate80% have not gone beyond year 8 – basically illiterate 80% were unemployed at the time of sentence.80% were unemployed at the time of sentence. 75% have a chronic health problem. 75% have a chronic health problem. 39% have had a serious head injury39% have had a serious head injury 60% of those entering prison will identify alcohol and other drugs as being a 60% of those entering prison will identify alcohol and other drugs as being a

significant contributor to their offending behaviour. 90% report severe alcohol significant contributor to their offending behaviour. 90% report severe alcohol intake issues. 25% have HepC and 10% contracted HepC in prison. 21% have a intake issues. 25% have HepC and 10% contracted HepC in prison. 21% have a morphine addiction – only 1% of those needing treatment receive that treatment in 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 prison. Marijuana is the most prevalent drug of addiction. 41% have a speed addiction. Opioides are a major problem because of prescribed medications.addiction. Opioides are a major problem because of prescribed medications.

Co-morbidity issues - 98.5% ATOD use Co-morbidity issues - 98.5% ATOD use andand Mental Health Issues. 26% on anti- Mental Health Issues. 26% on anti-depressants. 80% smoke. depressants. 80% smoke.

They are overwhelmingly young, male, poorly educated, unemployed and have high They are overwhelmingly young, male, poorly educated, unemployed and have high rates of mental illness, intellectual disability, substance abuse, physical disability rates of mental illness, intellectual disability, substance abuse, physical disability and chronic disease.and chronic disease.

The SolutionThe Solution ““Judicial officers can help to make a difference for Judicial officers can help to make a difference for

people appearing before them not only by people appearing before them not only by according procedural fairness but also, despite according procedural fairness but also, despite the constraints of a busy list, by expressing the constraints of a busy list, by expressing concern and compassion for the situation of their concern and compassion for the situation of their fellow human beings and by using processes fellow human beings and by using processes conducive to a therapeutic effect. This has the conducive to a therapeutic effect. This has the potential….to promote public confidence in the potential….to promote public confidence in the court as an institution that listens, acts and court as an institution that listens, acts and responds to the needs of those it serves. It allows responds to the needs of those it serves. It allows a judicial officer to take a more comprehensive a judicial officer to take a more comprehensive and creative approach to determining cases.”and creative approach to determining cases.”

M.S.King [2003] 28 Alternative Law Journal @175M.S.King [2003] 28 Alternative Law Journal @175

The SolutionThe Solution Participants in problem-solving diversion Participants in problem-solving diversion

courts are seen as citizens who have offended courts are seen as citizens who have offended and have offending-related problems (mental and have offending-related problems (mental health, drugs, alcohol, anger, lack of maturity health, drugs, alcohol, anger, lack of maturity or experience in life) or who otherwise have or experience in life) or who otherwise have problems with the law, but also as human problems with the law, but also as human beings who have strengths and insight into, beings who have strengths and insight into, and possible solutions for, their problems.and possible solutions for, their problems.

Those who do not display such strengths and Those who do not display such strengths and insight remain in the general lists and are insight remain in the general lists and are dealt with in the more traditional ways with dealt with in the more traditional ways with hopeful deterrence by fine or imprisonment or hopeful deterrence by fine or imprisonment or the like.the like.

The SolutionThe Solutionan Ethic of Care – diversion courtsan Ethic of Care – diversion courts

Need to Need to brakebrake the revolving door = win/win the revolving door = win/win Rehabilitation by absenting the negative – offending; Rehabilitation by absenting the negative – offending;

and imposing a positive – the ability to lead a happy, and imposing a positive – the ability to lead a happy, constructive and law-abiding life in the community. constructive and law-abiding life in the community.

Involves new roles for judicial officers, lawyers and Involves new roles for judicial officers, lawyers and prosecutors. Minimises the adversarial process.prosecutors. Minimises the adversarial process.

Addresses issues underlying offendingAddresses issues underlying offending Involves a collaborative, team-based decision Involves a collaborative, team-based decision

making processmaking process Requires judicial monitoringRequires judicial monitoring Develops community connectionsDevelops community connections

What sentences can the court What sentences can the court impose?impose?

Section 7 of the Sentencing Act provides:Section 7 of the Sentencing Act provides:

(a)(a) record a conviction and order that the offender serve a term of record a conviction and order that the offender serve a term of imprisonmentimprisonment; or; or

(ab)(ab) if the court is constituted by a magistrate, record a conviction and make a if the court is constituted by a magistrate, record a conviction and make a drug treatment orderdrug treatment order under under Part 3A (2007) in respect of the offender; or (2007) in respect of the offender; or

(b)(b) record a conviction and order that the offender serve a term of imprisonment record a conviction and order that the offender serve a term of imprisonment that is that is wholly or partly suspendedwholly or partly suspended; or; or

(c)(c) record a conviction and, if the offender has attained the age of 18 years and record a conviction and, if the offender has attained the age of 18 years and the offence is punishable by imprisonment, make a the offence is punishable by imprisonment, make a community service ordercommunity service order in respect of the offender; orin respect of the offender; or

(d)(d) with or without recording a conviction, make a with or without recording a conviction, make a probation orderprobation order in respect of in respect of the offender if the offender has attained the age of 18 years; orthe offender if the offender has attained the age of 18 years; or

(e)(e) record a conviction and order the offender to pay a record a conviction and order the offender to pay a finefine; or; or(ea)(ea) in the case of a family violence offence, with or without recording a in the case of a family violence offence, with or without recording a

conviction, make a conviction, make a rehabilitation program orderrehabilitation program order; or; or(f)(f) with or without recording a conviction, with or without recording a conviction, adjournadjourn the proceedings for a period the proceedings for a period

not exceeding 60 months and, on the offender giving an not exceeding 60 months and, on the offender giving an undertaking with undertaking with conditionsconditions attached, order the release of the offender; or attached, order the release of the offender; or

(g)(g) record a conviction and order the record a conviction and order the dischargedischarge of the offender; or of the offender; or(h)(h) without recording a conviction, order the without recording a conviction, order the dismissaldismissal of the charge for the of the charge for the

offence; oroffence; or(i)(i) impose any other sentence or make any order, or any combination of orders, 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 that the court is authorised to impose or make by this Act or any other enactment.enactment.

The principles of Sentencing are to be found in The principles of Sentencing are to be found in S 3 which provides:S 3 which provides:

(a)(a) amend and consolidate the State's sentencing law; and amend and consolidate the State's sentencing law; and (b)(b) promote the protection of the community as a primary consideration promote the protection of the community as a primary consideration

in in sentencing offenders; andsentencing offenders; and (c)(c) promote consistency in the sentencing of offenders; and promote consistency in the sentencing of offenders; and (d)(d) establish fair procedures for – establish fair procedures for –

(i)(i) imposing sentences on offenders generally; and imposing sentences on offenders generally; and (ii)(ii) imposing sentences on offenders in special casesimposing sentences on offenders in special cases; and; and (iii)(iii) dealing with offenders who breach the conditions of sentences; dealing with offenders who breach the conditions of sentences;

andand (e)(e) help prevent crime and promote respect for the law by allowing help prevent crime and promote respect for the law by allowing

courts to – courts to – (i)(i) impose sentences aimed at deterring offenders and other persons impose sentences aimed at deterring offenders and other persons

from committing offences; andfrom committing offences; and (ii)(ii) impose sentences aimed at the rehabilitation of offenders; and impose sentences aimed at the rehabilitation of offenders; and (iii)(iii) impose sentences that denounce the conduct of offenders; and impose sentences that denounce the conduct of offenders; and

(f)(f) promote public understanding of sentencing practices and promote public understanding of sentencing practices and proceduresprocedures; and; and

(g)(g) set out the objectives of sentencing and related orders; and set out the objectives of sentencing and related orders; and (h)(h) recognise the interests of victims of offences.recognise the interests of victims of offences.

Problem Solving CourtsProblem Solving Courts Diversion ListsDiversion Lists

An approach by the judicial officer which moves away from the An approach by the judicial officer which moves away from the immediate questions of guilt or innocence immediate questions of guilt or innocence

On-going judicial supervision On-going judicial supervision Integration of service provisionIntegration of service provision Direct engagement with defendantsDirect engagement with defendants A non-adversarial approachA non-adversarial approach

Drug Diversion Courts (post plea)Drug Diversion Courts (post plea) Mental Health Diversion Courts (pre plea)Mental Health Diversion Courts (pre plea) Family Violence Courts – FVOIP. Family Violence Courts – FVOIP. Youth Justice CourtsYouth Justice Courts Contest Mention CourtsContest Mention Courts Probation orders including FVOIP and Sober Driving ProgramProbation orders including FVOIP and Sober Driving Program Youth Justice community conferencesYouth Justice community conferences Misuse of Drugs Act - cautionsMisuse of Drugs Act - cautions Conciliation and Mediation intervention. In civil or quasi-criminal matters Conciliation and Mediation intervention. In civil or quasi-criminal matters

eg Child Protection; discrimination.eg Child Protection; discrimination. Community CourtsCommunity Courts Koori Courts (not in Tasmania but Sentencing Act and YJ Act and various Koori Courts (not in Tasmania but Sentencing Act and YJ Act and various

Cw’th Acts require aboriginality to be taken into account)Cw’th Acts require aboriginality to be taken into account)

DRUG TREATMENT COURTSDRUG TREATMENT COURTS

DTCs created in a response to the DTCs created in a response to the perception that the traditional adversarial perception that the traditional adversarial

criminal justice system does not adequately criminal justice system does not adequately address the issues of non-violent drug address the issues of non-violent drug

offenders.offenders.These courts reject the adversarial model.These courts reject the adversarial model.

DRUG TREATMENT ORDERSDRUG TREATMENT ORDERSWHAT ARE THEY?WHAT ARE THEY?

A Drug Treatment Order (DTO) is an unique A Drug Treatment Order (DTO) is an unique sentencing order – the role of the Court, sentencing order – the role of the Court, Prosecution and Defence Counsel extends Prosecution and Defence Counsel extends beyond the final sentencing disposition.beyond the final sentencing disposition.

The Court continues to review offender progress The Court continues to review offender progress during the order and CDO/prosecution/defence during the order and CDO/prosecution/defence counsel continue to provide recommendations to counsel continue to provide recommendations to a Magistrate on alterations or adjustments to the a Magistrate on alterations or adjustments to the order that may benefit the client.order that may benefit the client.

This process is established through court review This process is established through court review as a core program condition and the holding of as a core program condition and the holding of case conferences.case conferences.

How does your client get a DTO?How does your client get a DTO?

Entry Criteria – DTOEntry Criteria – DTO

Offender is to be found/plead guilty of an Offender is to be found/plead guilty of an imprisonable offence [s27B(1)(a)]imprisonable offence [s27B(1)(a)]The offence must not involve actual bodily harm The offence must not involve actual bodily harm that in the Courtthat in the Court’’s opinion is not minor harm s opinion is not minor harm [s27B(1)(a)(ii)][s27B(1)(a)(ii)]The offence must not be a sexual offence as The offence must not be a sexual offence as defined in Part 3A [s27B(1)(a)(i)], and the offender defined in Part 3A [s27B(1)(a)(i)], and the offender must not have any proceedings outstanding relating must not have any proceedings outstanding relating to sexual offences as defined in Part 3A [s27B(1)(f)to sexual offences as defined in Part 3A [s27B(1)(f)(i)](i)]

How does your client get a DTO?How does your client get a DTO?

[cont.][cont.]

The offender must not be subject to a sentencing The offender must not be subject to a sentencing order of the Supreme Court [s27B(1)(e)(i)]order of the Supreme Court [s27B(1)(e)(i)]The offender must not be subject to a parole order The offender must not be subject to a parole order under the Corrections Act 1997 [s27B(1)(e)(ii)]under the Corrections Act 1997 [s27B(1)(e)(ii)]The offender must not be subject to another Drug The offender must not be subject to another Drug Treatment Order [s27B(1)(e)(iii)]Treatment Order [s27B(1)(e)(iii)]The offender must not have any proceedings The offender must not have any proceedings outstanding relating to the infliction of actual bodily outstanding relating to the infliction of actual bodily harm [s27B(1)(f)(ii)]harm [s27B(1)(f)(ii)]

Role of Defence Lawyers –Role of Defence Lawyers –A judgment call for your clientA judgment call for your client

Identify that your client has a drug problem and fits Identify that your client has a drug problem and fits other eligibility criteria for referral into one of the three other eligibility criteria for referral into one of the three diversion streams.diversion streams.

Provide information to the client on:Provide information to the client on: The program generally, including the necessity of a The program generally, including the necessity of a

plea or finding of guilt;plea or finding of guilt; The assessment process specifically;The assessment process specifically; The need to provide written consent for referral to The need to provide written consent for referral to

assessment in the case of a DTO.assessment in the case of a DTO. Facilitate referral to the program by:Facilitate referral to the program by:

Liaising with the police at point of arrest; orLiaising with the police at point of arrest; or Liaising with the CDO or prosecution prior to bail Liaising with the CDO or prosecution prior to bail

hearinghearing

[cont.][cont.]Suggest CMD as an option to the Magistrate at the Suggest CMD as an option to the Magistrate at the appropriate hearing, also advising that offender has been appropriate hearing, also advising that offender has been informed about the program, is potentially a suitable informed about the program, is potentially a suitable candidate based on the offence, and is willing to undertake candidate based on the offence, and is willing to undertake assessment for the program.assessment for the program.Ongoing representation in the case of a DTO –Ongoing representation in the case of a DTO –

Attending case conferences and contributing to Attending case conferences and contributing to discussion on an offenderdiscussion on an offender’’s progress;s progress;

Attending court reviews to represent clientAttending court reviews to represent client’’s interests;s interests; Liaison with offender on progress through the program;Liaison with offender on progress through the program; Adjustment of core/program conditions;Adjustment of core/program conditions; Encouraging compliance and involvement during the life Encouraging compliance and involvement during the life

of the DTOof the DTO

What is the role of the prosecutor?What is the role of the prosecutor?

Identify that offender fits eligibility criteria for referral into one of the three Identify that offender fits eligibility criteria for referral into one of the three diversion streams.diversion streams.

Facilitate & Non-obstructionist.Facilitate & Non-obstructionist. Ongoing representation in the case of a DTO –Ongoing representation in the case of a DTO –

• Attending court reviews to provide accountability for criminal Attending court reviews to provide accountability for criminal behaviour and ensure that community safety is not compromised;behaviour and ensure that community safety is not compromised;

• Attending case conferences and contributing to discussion on an Attending case conferences and contributing to discussion on an offenderoffender’’s progress;s progress;

• Generally supportive of treatment process;Generally supportive of treatment process;• Focus on long-term recovery and rehabilitation;Focus on long-term recovery and rehabilitation;• Facilitate the rights and interests of victims;Facilitate the rights and interests of victims;• Encouraging compliance and involvement during the life of the DTO;Encouraging compliance and involvement during the life of the DTO;• Adjustment of core/program conditions;Adjustment of core/program conditions;• Non-compliance and cancellation.Non-compliance and cancellation.

Sanctions and Incentives - the carrot Sanctions and Incentives - the carrot and stick approachand stick approach

What happens if the participant offends What happens if the participant offends during a DTO?during a DTO?

Subsuming a Term of Imprisonment into the Custodial Part of the DTO Subsuming a Term of Imprisonment into the Custodial Part of the DTO [s27P]-[s27P]-

This provision allows a Magistrate to hear an offence that may have been 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 committed either before or after a DTO was made and subsume a term of imprisonment into the existing DTO.imprisonment into the existing DTO.Where an offender is subject to a DTO and the:Where an offender is subject to a DTO and the:

Court finds an offender guilty of an offence, andCourt finds an offender guilty of an offence, and Court imposes a term of imprisonment for the offence, andCourt imposes a term of imprisonment for the offence, and Court does not suspend the sentence either in whole or in part, andCourt does not suspend the sentence either in whole or in part, and Length of the sentence is less than the remaining length of the Length of the sentence is less than the remaining length of the

custodial part of the DTO, andcustodial part of the DTO, and Offence is one for which the Court could have made a DTO if the Offence is one for which the Court could have made a DTO if the

offender were not already subject to a DTOoffender were not already subject to a DTO

[cont.][cont.]

then the Court can either:then the Court can either:

Subsume the sentence into the custodial part of the order, orSubsume the sentence into the custodial part of the order, orCancel the treatment and supervision part of the DTO and either:Cancel the treatment and supervision part of the DTO and either:

▪ Activate some or all of the custodial part of the order, orActivate some or all of the custodial part of the order, or▪ Cancel the custodial part of the DTO and, other than by Cancel the custodial part of the DTO and, other than by

making an order of imprisonment, deal with the offender for making an order of imprisonment, deal with the offender for each offence in respect of which the DTO was made in any 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 way in which it could deal with the offender had it just found the offender guilty of the offence.the offender guilty of the offence.

How do DTO conclude?How do DTO conclude?

Circumstances where a DTO may be Circumstances where a DTO may be cancelledcancelled – –

Cancellation of an order where an offenderCancellation of an order where an offender’’s circumstances were not s circumstances were not accurately presented [s27Q(1)(a)]accurately presented [s27Q(1)(a)]Cancellation of an order where an offenderCancellation of an order where an offender’’s circumstances have s circumstances have materially changed [s27Q(1)(b)]materially changed [s27Q(1)(b)]Cancellation of an order for withdrawal of consent [s27Q(1)(c)]Cancellation of an order for withdrawal of consent [s27Q(1)(c)]Cancellation of an order where the treatment and supervision part of 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 is unlikely to achieve one or more of the purposes for which the order was made (repeated failures) [s27Q(1)(d)]the order was made (repeated failures) [s27Q(1)(d)]Cancellation of an order by committing an offence punishable by a Cancellation of an order by committing an offence punishable by a term of imprisonment exceeding 12 months [s27O]term of imprisonment exceeding 12 months [s27O]Cancellation of an order on successful completion of the Drug Cancellation of an order on successful completion of the Drug Treatment Order [s27L]Treatment Order [s27L]Cancellation of an order after two years [s27R]Cancellation of an order after two years [s27R]

How do DTO conclude?How do DTO conclude?

GraduationGraduation Program lasts 18 to 24 months (max)Program lasts 18 to 24 months (max) Offence free and drug free for Offence free and drug free for

minimum of 90 days preferably 180 minimum of 90 days preferably 180 days.days.

What next -What next -Drunk driversDrunk drivers

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

Drunk Driver CourtsDrunk Driver Courts In many countries including NZ, often known In many countries including NZ, often known

as DWI (Drive Whilst Intoxicated) or DUI as DWI (Drive Whilst Intoxicated) or DUI (Drive Under Influence) Courts.(Drive Under Influence) Courts.

For hardcore drunk drivers with priors or in For hardcore drunk drivers with priors or in excess of .15 and often alcohol dependentexcess of .15 and often alcohol dependent

Treatment orders include use of ignition Treatment orders include use of ignition interlock devices sometimes with photo id.interlock devices sometimes with photo id.

Orange County California had recidivism Orange County California had recidivism rates of nearly 25% in 2004 but have now rates of nearly 25% in 2004 but have now reduced that to 4.6% after DWI intervention.reduced that to 4.6% after DWI intervention.

Tasmania Magis Court hopes to introduce Tasmania Magis Court hopes to introduce similar in next 12 months.similar in next 12 months.

THE MENTAL HEALTH LISTTHE MENTAL HEALTH LIST

How the List startedHow the List started

Court initiated: collaboration b/w dedicated Court initiated: collaboration b/w dedicated magistrate, FMHCLO police prosecutors and magistrate, FMHCLO police prosecutors and legal practitionerslegal practitioners

Re-arrangement of Court lists to divert Re-arrangement of Court lists to divert defendants with mental illness into specialist defendants with mental illness into specialist sittingssittings

Key PrinciplesKey Principles

Based on a Based on a ‘‘therapeutic jurisprudencetherapeutic jurisprudence’’ approach approach Assisting people to address the mental health Assisting people to address the mental health

needs related to their offending behaviours needs related to their offending behaviours Improving community safety and reducing re-Improving community safety and reducing re-

offending offending Improving the psychological and general well Improving the psychological and general well

being of people on the List being of people on the List Reducing the use of criminal justice punishments Reducing the use of criminal justice punishments

for health related behavioursfor health related behaviours

ProcedureProcedure Consent: Participation in the program is at all times Consent: Participation in the program is at all times

voluntary voluntary and any assessment will only occur after and any assessment will only occur after the potential participant or their legal guardian has the potential participant or their legal guardian has provided written consentprovided written consent

Referral: A person can refer themselves into the Referral: A person can refer themselves into the program or be referred into it by their Solicitor, program or be referred into it by their Solicitor, TasPolice (including Prosecutions), Magistrates, Mental TasPolice (including Prosecutions), Magistrates, Mental Health Case Managers, Other Service Providers, or Health Case Managers, Other Service Providers, or Anyone with a genuine interest in the welfare of the Anyone with a genuine interest in the welfare of the personperson

Assessment: In order to determine whether a person Assessment: In order to determine whether a person is suitable for the program they must first undergo an is suitable for the program they must first undergo an assessment interview by a Forensic Mental Health assessment interview by a Forensic Mental Health Court Liaison OfficerCourt Liaison Officer

Procedure (cont.)Procedure (cont.) Court Diversion: Once assessed as eligible and suitable by the Court Diversion: Once assessed as eligible and suitable by the

FMHCLO, the person will appear before the Magistrate presiding FMHCLO, the person will appear before the Magistrate presiding over the List. The Magistrate will, on the basis of information over the List. The Magistrate will, on the basis of information provided to the Court by the FMHCLO, police and defence lawyer, provided to the Court by the FMHCLO, police and defence lawyer, decide whether to accept a person on to the program and tailor an decide whether to accept a person on to the program and tailor an order—usually a bail order—best suited to addressing the personorder—usually a bail order—best suited to addressing the person’’s s mental health needsmental health needs

Court Review: During a personCourt Review: During a person’’s diversion program, a series of s diversion program, a series of court reviews will take place, which the person will be required to court reviews will take place, which the person will be required to attend. This is a relatively informal process that provides an attend. This is a relatively informal process that provides an opportunity for direct interaction with the Magistratesopportunity for direct interaction with the Magistrates

Sentencing: At one of the reviews a final date will be given for the 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 person to return to Court for finalisation of their matters. A Magistrate may take into account the personMagistrate may take into account the person’’s success or otherwise s success or otherwise in the diversion program when considering a final sentencein the diversion program when considering a final sentence

Key PlayersKey Players

MagistratesMagistrates Forensic Mental Health Court Liaison Forensic Mental Health Court Liaison

OfficersOfficers ProsecutionProsecution Legal AidLegal Aid Private Legal PractitionersPrivate Legal Practitioners

MagistratesMagistrates

EncouragementEncouragement Support Support SympathySympathy ListeningListening PraisingPraising

Police ProsecutorsPolice Prosecutors Dedicated police prosecutor allows the Dedicated police prosecutor allows the

prosecutor to develop a relationship with the prosecutor to develop a relationship with the FMHCLO and the defence counsel FMHCLO and the defence counsel

Everyone Everyone ‘‘…is on the same wave length.…is on the same wave length.’’ (PP) (PP) ‘‘I certainly see it as something that is far I certainly see it as something that is far

more just and appropriate. So if a person has more just and appropriate. So if a person has a mental illness and their mental illness has a mental illness and their mental illness has had a significant impact on the offence or had a significant impact on the offence or offending behaviour, then that’s the thing offending behaviour, then that’s the thing that needs to be targeted – their health. So if that needs to be targeted – their health. So if Health and Justice can come together and Health and Justice can come together and work together well on that, I think that’s work together well on that, I think that’s fabulous.’ (PP)fabulous.’ (PP)

Legal PractitionersLegal Practitioners

CLC / Legal aid / private practitionerCLC / Legal aid / private practitioner Still speak on behalf of the defendant Still speak on behalf of the defendant

in many circumstancesin many circumstances Enters pleas in mitigation when matter Enters pleas in mitigation when matter

is being finalised. is being finalised. Acts as an interpreter to ensure that Acts as an interpreter to ensure that

Def is aware of what is being decided, Def is aware of what is being decided, DefDef’’s obligations and bail conditionss obligations and bail conditions

Forensic Mental Health Court Forensic Mental Health Court Liaison OfficersLiaison Officers

Conduct assessments Conduct assessments Refer participants to appropriate service Refer participants to appropriate service

providersproviders Monitor level of engagement/complianceMonitor level of engagement/compliance Make recommendations about changes Make recommendations about changes

to treatment regimes and/or bail to treatment regimes and/or bail conditionsconditions

Liaise with prosecution and defence to Liaise with prosecution and defence to determine progression of the case and determine progression of the case and date of finalisationdate of finalisation

On Magistrates: Offender On Magistrates: Offender InterviewsInterviews

‘‘They could tell that I was really worked up and They could tell that I was really worked up and they accommodated it…they got my partner to they accommodated it…they got my partner to come over and sit next to me on the big round come over and sit next to me on the big round desk…they were very aware of how I was feeling I desk…they were very aware of how I was feeling I think.think.’’

‘‘The magistrate, he was terrific. He was really The magistrate, he was terrific. He was really good. He was understanding of me (sic) mental good. He was understanding of me (sic) mental illness and how Iillness and how I’’d become to get mentally ill and d become to get mentally ill and he was very supportive actually.he was very supportive actually. ’’

‘‘He referred to things so that (my daughter) He referred to things so that (my daughter) understood why she was there. And when you are understood why she was there. And when you are on medication you get a bit hazy about things on medication you get a bit hazy about things that have happened, so it was good that he that have happened, so it was good that he mentioned things like that.mentioned things like that.’’

On FMHCLOs - Offender On FMHCLOs - Offender InterviewsInterviews

‘‘The FMHCLO are, in my view, the ones doing The FMHCLO are, in my view, the ones doing all the work.all the work.’’

‘‘She was very compassionate.She was very compassionate.’’ ‘‘Yeah, sheYeah, she’’s terrific. Yeah shes terrific. Yeah she’’s really good s really good

with the people that she deals with…I watch with the people that she deals with…I watch her and sheher and she’’s really, umm how would you put s really, umm how would you put it, she tries, she tries hard.it, she tries, she tries hard. ’’

‘‘She would always…follow up on anything She would always…follow up on anything that was discussed and…she would ring up that was discussed and…she would ring up and explain stuff to me before and after and explain stuff to me before and after meeting with the lawyer. She was really goomeeting with the lawyer. She was really good.d.’’

On Legal Practitioners – Offender On Legal Practitioners – Offender InterviewsInterviews

‘‘I can understand about 70% of (what is said I can understand about 70% of (what is said in court), but when they go through this in court), but when they go through this paragraph and that paragraph, Iparagraph and that paragraph, I’’ve got no ve got no idea, but after court the lawyer comes out idea, but after court the lawyer comes out and he sort of explains it to me in laymanand he sort of explains it to me in layman’’s s terms.terms.’’

‘‘The solicitor was real good; they worked The solicitor was real good; they worked well with the mental health team.well with the mental health team. ’’

‘‘She (explained what was being discussed) She (explained what was being discussed) that day when I went to court and I couldnthat day when I went to court and I couldn’’t t understand what the judge was saying. She understand what the judge was saying. She got up and talked for megot up and talked for me’’

Collaboration & CooperationCollaboration & Cooperation

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

Monthly case management meetings Monthly case management meetings between the FMHCLO, prosecution and between the FMHCLO, prosecution and lawyers to review progresslawyers to review progress

Management The List is supported by Tasmania Police,

the Legal Aid Commission, and Forensic Mental Health Services, all of whom play vital court-based roles to enable it to function effectively

OutcomesOutcomes 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 continuedOutcomes continued

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)Statistics – Hobart (January)Clients on the list since 2007 = 312Clients on the list since 2007 = 312

Clients successfully completed the list = 273 Clients successfully completed the list = 273 (or 87.5%)(or 87.5%)

GenderGenderMale = 192 (or 61%)Male = 192 (or 61%)Females = 122 (or 39%)Females = 122 (or 39%)

Statistics continuedStatistics continued Distribution of Sentences:Distribution of Sentences:

50% = Good behaviour bond without 50% = Good behaviour bond without conviction recorded conviction recorded

33.7% = Good behaviour bond with 33.7% = Good behaviour bond with conviction recorded conviction recorded

8.3% = Charges dismissed8.3% = Charges dismissed 7.9% = Tender No evidence7.9% = Tender No evidence

Statistics continuedStatistics continued Diagnoses (including multiple diagnoses):

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

WHAT NEXT?WHAT NEXT?

We are broadening MH lists to We are broadening MH lists to include Intellectual Disability and include Intellectual Disability and Acquired Brain Injury defendants?Acquired Brain Injury defendants?

Possible changes to Sentencing Act Possible changes to Sentencing Act to permit deferred sentencing – gives to permit deferred sentencing – gives more options.more options.

$ resource is a major issue.$ resource is a major issue.

The Court is adapting to new The Court is adapting to new challenges - see our websitechallenges - see our website

http://www.magistratescourt.tas.gov.au/