Drug and Alcohol Treatment Orders (ACT)

Sentencing for criminal offences is a difficult exercise, but drug and alcohol dependency add even more layers of complexity. In recent times, the ACT has followed other jurisdictions by introducing a drug court, with a separate arm of the Supreme Court dealing with particular offenders by imposing Drug and Alcohol Treatment Orders that divert them from what would otherwise have been a sentence of full-time imprisonment.

What are Drug and Alcohol Treatment Orders?

Section 80O of the Crimes (Sentencing) Act 2005 spells out the objects of drug and alcohol treatment orders. This is to:

(a)        facilitate the rehabilitation of the offender by providing a judicially supervised, therapeutically oriented and integrated treatment regime; and

(b)       reduce the offender’s dependency on alcohol or a controlled drug; and

(c)        reduce the health risks associated with the offender’s dependency on alcohol or controlled drugs; and

(d)       assist with the offender’s integration into the community; and

(e)        promote community safety by reducing the level of criminal activity.

Why Drug and Alcohol Treatment Orders matter

Views vary markedly on the way drug- or alcohol-dependent people should be sentenced. At one end of the spectrum are those who see no reason to treat them any differently to anyone else who offends; at the other, there is considerable sympathy for the plight of people for whom addiction has become overwhelming.

There is a further, important aspect: the protection of the community. Some say that only incarceration can protect the community. Others argue that helping offenders to rehabilitate often means that they will not re-offend.

There is case law that suggests that successful rehabilitation is the community’s best protection (eg Yardley v Betts 1 A Crim R 329 (CCA) at 112). Statistics also support this. The second evaluation of the New South Wales Drug Court in 2008 by the Bureau of Crime Statistics and Research concluded that those who successfully completed the drug court program were 37 per cent less likely than other offenders to be convicted of any offence at any point. Offenders who had participated in the drug court program (whether ultimately successful on the program or not) were 17 per cent less likely to be reconvicted.

When former ACT Attorney-General Gordon Ramsay introduced the new scheme, he said it would provide “an alternative sentencing option that aims to rehabilitate certain offenders while also protecting the community as a whole”.

Who is eligible for a Drug and Alcohol Treatment Order?

To be eligible for a drug and alcohol treatment order, an offender must plead guilty to an eligible offence and be convicted in the Supreme Court and sentenced to imprisonment for at least 1 year but not more than 4 years (s12A of the Sentencing Act). That sentence can then be fully suspended on condition that the offender agrees to complete a treatment program, but only if the court is satisfied on the balance of probabilities that the offender is dependent on alcohol or a controlled drug; and the dependence substantially contributed to the commission of the offence. Any concerns from a victim about his or her safety or welfare must be taken into account.

Importantly, subsection (5) provides: “The court must not impose a lesser sentence of imprisonment on the offender than the circumstances of the offence would ordinarily require only to allow the court to make a treatment order.”

An “eligible offence” is any offence that is not a sexual offence or murder, manslaughter or the infliction of grievous bodily harm.

A different approach

Unusually for criminal legislation, the new laws about drug and alcohol treatment orders talk of “rewarding” offenders. Section 80Q of the Sentencing Act talks of rewarding offenders for compliance by:

(i)        decreasing how often the offender must undergo counselling, treatment or other supervision under the treatment order; or

(ii)       decreasing how often the offender must be tested for alcohol or drugs under the treatment order.

However, sanctions can also be imposed by increasing the above if the offender does not comply with the terms of the order.

In deciding whether to make a treatment order for the offender, the court must consider any recommendations in the mandatory drug and alcohol treatment assessment, any medical report about the offender given to the court, any evidence given by an assessor who prepared the drug and alcohol treatment assessment, and any evidence given, or submission made, by a member of the treatment order team about the offender.

A Pre-Sentence Report by ACT Corrections must also be prepared ahead of the court’s decision.

Core conditions

Offenders must commit to the order’s core conditions, meaning they:

(a)        must not commit another offence.

(b)       if charged with another offence, must tell the responsible director‑general as soon as possible, but within 2 days.

(c)        must report to a member of the treatment and supervision team where and when directed.

(d)       must receive visits from a team member at the times directed.

(e)        must advise of any change of his or her details.

Offenders must not leave or stay outside the ACT without permission for a continuous period of more than 24 hours and must not, if the court grants permission to leave or stay outside the ACT, fail to comply with any condition of that permission.

On top of the core conditions, there are treatment program conditions, including that the offender:

(a)        must complete a program of treatment in relation to alcohol or drug dependency; and

(b)       must comply with any other condition imposed by the court as necessary to achieve the purpose of the treatment program.

Conditions that the court may impose include:

• submit to medical, psychiatric or psychological treatment.

(b)       submit to detoxification at a stated facility.

(c)        participate in counselling or programs for treatment relevant to dependency or offending behaviour.

(d)       attend meetings with a stated person or class of person.

(e)        participate in vocational, educational or employment programs or courses.

(f)        submit to alcohol and drug testing.

(g)       not return a positive test sample under alcohol and drug testing.

(h)       wear a device that detects alcohol or drug usage by the offender.

(i)        install a device or equipment at the offender’s home address.

(j)        live at a stated place for a stated period.

The conditions are onerous because these orders are replacing full-time imprisonment of at least a year, meaning that the offending and offending history is very serious.

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