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By Hilary Hannam.
The Youth Drug and Alcohol Court (‘YDAC’) is a pilot program currently available in the Children's Court of NSW; it operates in Parramatta, Bidura (Glebe) and Campbelltown Children's Courts in metropolitan Sydney. It is aimed at reducing offending by reducing drug and alcohol use amongst, and offering a range of therapeutic interventions to, young people who are involved in the criminal justice system in NSW. Unlike other drug-related diversionary programs, which appear to be less successful with Indigenous people than non-Indigenous people,[1] the YDAC has been widely utilised by Indigenous offenders and seems to be a successful strategy in reducing offending amongst this cohort.
The YDAC has its origins in the Drug Summit convened by the NSW Government in
1999, which was concerned with addressing the significant
problems associated
with the use of illicit drugs. An important focus of the summit was the
development of alternative ways of dealing
with young people with substance
abuse problems who were also committing offences. As the concept of specialised
drug courts was
still relatively new at that time, especially in Australia, it
was decided that the Youth Drug Court would commence as a pilot programme.
The
programme commenced in July 2000 and has continued to operate formally as a
pilot since that date.
YDAC is targeted toward serious offenders who
would be likely to receive a custodial sentence, but for their participation in
the
program. A young offender who completes or ‘graduates’ from the
program does not receive a custodial sentence and is
thus diverted from custody.
Over 130 young people have successfully completed or
‘graduated’ from the program to date, and there are currently about
40 young people participating in it. A significant number of those participating
in the YDAC at any given time is Aboriginal. Considering
the well documented
statistics relating to the high numbers of Indigenous people coming into contact
with the criminal justice system,
YDAC represents one of the few ‘good
news stories’ for young Indigenous offenders.
In addition to
substance abuse, all of the young people participating in the program have
complex needs relating to their offending
which need to be addressed. These
include accommodation, mental and physical health problems, family dysfunction
and educational
deficits. Therefore, the program is holistic, drawing on five
NSW Government agencies, including Juvenile Justice, Department of
Community
Services, Department of Education and Training and Department of Health under
the leadership of the Attorney-General’s
Department, as well as some
non-government organisations that operate collaboratively in the delivery of
services.
Whilst the central scheme of the program has remained the same since its implementation, some changes have developed over the years to respond to emerging needs. Most notably, although the program was initially concerned with the needs of offenders with illicit drug problems only, for many years it has been also available for young people whose principal substance of concern is alcohol. Further, whilst referral to the program was originally on a voluntary basis, for many years magistrates have been able to refer prima facie eligible young people to YDAC with or without their consent. This increased power was in response to the large number of young people who seemed suitable for YDAC but refused assessment due to a lack of knowledge of the program’s benefits. This initial rejection meant that many more offenders were serving custodial sentences.
YDAC operates by means of a Practice Direction issued by the Senior
Children’s Magistrate and criminal justice
legislation.[2] Under s33(1)(c2) of
the Children’s (Criminal Proceedings) Act 1987 (NSW), a young
person who has pleaded to or been found guilty of an offence may have his or her
sentence deferred for up to 12 months.
Utilising this section, the sentence of a
suitable young person is deferred to allow him or her to participate in the YDAC
program.
The conditions required to be followed by a participant to successfully
complete his or her treatment plan are imposed as bail conditions
for the period
of the adjournment. Any young person who meets the following eligibility
criteria may be referred to YDAC:
• Has entered a plea of guilty or
has been found guilty of all charges against him or her and none of the offences
is a sex
offence
• Has a demonstrable drug or alcohol
problem
• Is aged between 14-18 (or is over 18 but was under 18 at the
time of the offence)
• Resides in, committed the offence in, or
otherwise identifies with the greater Sydney metropolitan area
• Is
ineligible for a caution or youth justice conference.
The NSW YDAC
criteria differ from other drug courts in Australia and overseas, in three ways.
Firstly, an offender is not excluded
if he or she has committed a violent
offence. Indeed, virtually all of our participants have committed violent
offences. Secondly,
an offender may be eligible even if the principal substance
of concern is alcohol.[3]
Finally, participation does not depend on strict geographical boundaries and
any young person who identifies with the greater Sydney
metropolitan area
may be considered.
The YDAC team consists of a nominated children’s magistrate, prosecutor
from the NSW Police Service, Legal Aid solicitor and
a representative from the
Joint Assessment and Review Team (‘JART’). The JART is made up of
representatives from participating
NSW Government Departments and is responsible
for assessing a young person’s suitability for the YDAC, developing
appropriate
individual program plans, and reporting to the court on his or her
progress.
On the first day a young person is referred to YDAC, an
eligibility screen is carried out by one of the juvenile justice officers
attached to YDAC. If the young person is found eligible, the matter is then
adjourned to enable a comprehensive assessment to be
carried out. In preparing
the assessment, the JART gathers detailed information about the young
person’s physical and mental
health, education, drug or alcohol usage,
family relationships, social and cultural issues and offending history in order
to develop
a treatment plan.
Of course, treatment plans will not always
be possible. Some young people will have no motivation to participate in the
program; others
may have severe mental health problems or an intellectual
disability preventing them from complying with the treatment plan. In such
cases, the young person will be returned to the Children’s Court. In the
majority of cases, however, an appropriate treatment
plan is able to be
developed for those young people found eligible; it is the invariable practice
of the YDAC magistrate to admit
young people who have been recommended as
suitable to the program.
When a young person is admitted to the program, his
or her proceedings are adjourned for six months for sentence and graduation. It
is made clear to the young person that the proceedings may be adjourned for up
to 12 months to allow for completion of the program
plan; many young people take
advantage of the full time allowed.
Upon admission, the young person is
granted strict conditional bail. In addition to not committing any fresh
offences and attending
court as required, the young person is also required to
comply with all directions of the JART, including residence, participation
in
all appointments, urinalysis, counselling and other treatments. Conditions
requiring participants to refrain from associating
with certain persons,
prohibiting their use of drugs, alcohol or entry into licensed premises, are
commonly imposed.
If the participant satisfactorily completes the
treatment plan, he or she is sentenced to a non-custodial disposition. Following
the
sentence, a graduation ceremony and celebration is held, attended by family
and friends of the graduate. If a participant withdraws
from the program, or is
discharged for persistent serious non-compliance, the YDAC magistrate also
sentences him or her.
Health Services (including dental care) are provided to all young people on
YDAC through the provision of two nurses, a part-time
addiction specialist and a
part-time psychiatrist. Most participants complete a residential drug
rehabilitation program that generally
lasts up to three months. Some
participants undertake a day program; others, especially those attending school
or carrying out paid
employment, address their substance abuse issues through
counselling in the community. All young people are subject to random
urinalysis.
Services and programs for YDAC participants are
delivered either at the YDAC office in Liverpool or through community-based
agencies.
Each participant is assigned to one of seven juvenile justice officers
or counsellors exclusively attached to the YDAC. One of the
two Aboriginal
Juvenile Justice staff members is allocated to assist Indigenous participants.
Juvenile Justice offers specific programs
such as group or individual sessions
aimed at ending offending.
Two TAFE teachers are based at the YDAC office
and offer participants assistance with education. Where possible, the Education
JART
member assists young people to gain readmission to school or TAFE. The JART
Education member also provides assistance with training
and job searching.
Each participant is also assigned a case manager from a non-government agency
to assist with welfare related issues. One of the case
managers identifies as
Aboriginal. This relationship with non-government agencies is a very special
component of the YDAC. Many participants
form strong, long-term relationships
with their case managers; often these continue even after completion of the YDAC
program. YDAC
also has strong links with many Indigenous-based services such as
Oolong House, the Glen and Weigelli rehabilitation centres, as
well as supported
accommodation services such as Hebershem Aboriginal Youth Services and
Aboriginal Medical Centres in Mt Druitt,
Campbelltown, Redfern and Canberra.
These are all utilised frequently.
Many of the participants in YDAC come from
dysfunctional families and some are under the care of the NSW Department of
Community Services
(‘DOCS’). For these young people, it is not
possible to live at home and succeed on the program. For this reason, virtually
all of the participants spend some time, generally after initial release from
custody, in the Residential Induction Unit, a six-bed
facility in Liverpool
solely for participants in YDAC. The unit is also available for young people who
have nowhere suitable to stay
while participating in the program. In addition to
providing supported accommodation, social outings, and participation in
community
services, activities to enhance living skills are also offered to
residents. Young people are assisted in finding other supported
accommodation
where it is not appropriate or desirable for them to return home.
One of the hallmarks of the YDAC is the supervisory and monitoring role
played by the court by means of regular ‘report-backs’
with the
court team. Each member of the court team, particularly the magistrate, plays a
therapeutic role in the young person’s
rehabilitation.[4] Prior to each
report-back, team members are provided with reports from each
participant’s juvenile justice officer and case
manager concerning
compliance with the program plan. At the report-back, the magistrate and other
team members offer encouragement
and praise for progress and reiterate the
importance of completing the program. The process is non-adversarial and
informal, with
all team members supporting the young person’s
rehabilitation and recovery. Family members of the participant are encouraged
to
attend where this is helpful to the participant’s progress.
The
court does not have the power to impose sanctions. However, as drug or alcohol
use, offending or non-compliance with directions
each constitutes a breach of
bail, bail may be revoked in serious cases.
The YDAC has only been formally assessed on one occasion. In 2003, the NSW
Attorney-General’s Department commissioned a report
to evaluate the
operation of the pilot over the two years ending July
2002.[5] In the recommendations
contained in the Executive Summary, the authors expressed the view that
the program is having an important positive impact on the lives of
many of those participating … the key recommendation is that
the YDC
program should continue and possibly be expanded to selected other geographical
areas.[6]
This evaluation
was undertaken at a very early stage in the history of the program and no
further reviews have been undertaken. However,
for the past nine years, I have
sat as a judicial officer and have seen the revolving door of individuals in the
criminal justice
system, where children frequently ‘progress’ from
juvenile offenders to adult offenders. The YDAC is one of very few
programs that
offer an alternative to this harsh reality. In my personal experience, the
hundred or so young people I have encountered
on the program have all made
improvements in their lives, whether or not they complete the program. This is
especially so with Indigenous
participants.
Recently I bumped into a
young Aboriginal woman who had participated in the program in 2008. Prior to the
YDAC, the young woman had
been a heavy heroin user and had spent a significant
part of her young life in custody. When we spoke last month, I noticed that
she
was looking incredibly healthy. She told me that she had been drug free for 11
months, was working, playing sport and was in
a good relationship. We had a
wonderful chat and she told me that YDAC had really helped her, particularly
because she knew that
we all cared about her and what would happen to her. We
reminisced about particular days in court, including the day we shared a
cake to
celebrate her birthday. I was heartened to learn that this young woman has
started talking to other young Aboriginal women
currently involved in criminal
proceedings, and urging them to try out the program as well.
But this is
just one example. Those who practice in YDAC have no doubt, on an anecdotal
basis, that all participants gain some benefit
from the program. Those who
graduate gain significant benefits on many key indicators relating to reduced
offending, such as reduced
substance abuse, improved physical and mental health,
access to counselling and psychological services, improved family relations
and
living skills and access to stable accommodation. Many go on to find employment
or return to school to complete their education.
We have all watched and shared
in the joy of transformed lives. Through its problem-solving, holistic and
therapeutic approach, the
YDAC offers a real alternative to conventional
pathways under the criminal justice system.
Magistrate Hilary Hannam
graduated in Arts and Law (Honours) from the University of Sydney in 1983. After
16 years of practice, principally
at the Commonwealth DPP, she was appointed as
a magistrate of the Local Court of NSW in 2000. She has presided in Sydney and
Wagga
Wagga and, since 2007, in the Children’s Court. She is a Churchill
Scholar, having undertaken research into problem-solving
courts in the US in
2003.
[1] See Jacqueline Joudo,
Responding to Substance Abuse and Offending in Indigenous Communities: Review
of Diversion Programs
(2008).
[2] See Practice Note 1,
<www.lawlink.nsw.gov.au>.
[3] Joudo, above n 1,
9.
[4] For a discussion of
therapeutic jurisprudence, see David B Wexler and Bruce J Winick (eds), Law
in a Therapeutic Key:Developments in Therapeutic Jurisprudence’
(1996).
[5] Tony Eardley et al,
Evaluation of the NSW Youth Drug Court Pilot Program (2004).
[6] Ibid, v.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2009/28.html