This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

Drugs and Rehabilitation of Offenders


Courts that sentences offenders who are battling drug issues are faced with a difficult balancing act. While the public needs to be protected from crimes associated with drug addictions and the conduct of the individual offender needs to be publicly denounced, the rehabilitation of offenders is also a mandated and important concern in the sentencing exercise.

Rehabilitation

As former South Australian Chief Justice King said in the 1979 decision of Yardley v Betts, “The protection of the community is also contributed to by the successful rehabilitation of offenders.

“This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits.

“If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.”

Drug courts

Rehabilitation for drug-troubled offenders has long been seen as important and various jurisdictions, including the ACT and NSW, have set up special Drug Courts or drug sentencing lists to focus on the issues relevant to this particular cohort of offenders. The ACT’s Drug and Alcohol Sentencing List (DASL) is a relatively new creation. It is a sentencing list for offenders being dealt with by the ACT Supreme Court for offending in which drugs or alcohol were a major factor. At its commencement, it had only 10 places available. Those who were found eligible became part of a tightly judicially monitored system of rehabilitation. Unsurprisingly, the places were quickly filled, leaving dozens of others to be sentenced in the broad flow of the general sentencing lists of both the Magistrates and Supreme Courts.

Recent ACT sentencing decisions

Two recent ACT cases clearly demonstrate the many considerations that can go into dealing with offenders with drug issues. An offender before Justice Burns had committed burglary (maximum penalty 14 years’ imprisonment), major theft and property damage (maximum 10 years’ each) and had what His Honour found was a “well-entrenched drug addiction”, including cannabis use from the age of nine, having come from a background of neglect and abuse.

The judge told the offender, who was only 20 at the time of sentencing, “As such, you are still quite a young man and rehabilitation is still a very significant sentencing consideration.” Specifically, in relation to drugs, Justice Burns found, “Ordinarily, drug addiction is not a reason to reduce sentences for criminal offending. However, some amelioration of that principle is permitted where drug addiction is commenced at an early age such that the offender should not be considered as responsible for the effects of drug addiction as they would be if they had commenced the use of drugs as an adult.”

Because of the seriousness of the offences, His Honour had still to impose prison sentences but lessened both the head sentence (to an aggregate of two years and three months) and, critically, imposed a non-parole period (to 14 months, effectively half the head sentence) because of the above considerations. This sentence came with a special judicial direction that prison authorities monitor the offender’s progress closely with a view to him defeating his drug addiction before being paroled.

A recent matter before Justice Loukas-Karlsson involved a 34-year-old man who had fallen into drug use at the age of 11 and later battled daily methamphetamine use. He faced less serious charges (weapon possession and drug possession for sale or supply, both carrying a maximum of five years’ imprisonment). With the DASL full, Her Honour paid particular consideration to the imposition of an Intensive Correction Order (ICO), a relatively new sentencing instrument in the ACT which allows an offender to serve a prison sentence in the community.

Intensive Corrections Orders

Intensive Corrections Orders (ICOs) are all about rehabilitation. As the NSW Attorney-General Mark Speakman told Parliament, the new legislation “will make community safety the paramount consideration when imposing an Intensive Correction Order on offenders whose conduct would otherwise require them to serve a term of imprisonment.

“Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending.

“Evidence shows that community supervision and programs are far more effective at this.”

Justice Loukas-Karlsson went ahead and ordered an ICO despite the court-appointed assessor finding that the offender before her was not suitable for it. The finding of unsuitability noted the offender had attended only six of 10 appointments during the assessment and had failed to supply the required samples for urinalysis testing. The offender himself had expressed concerns about his capacity to achieve and maintain abstinence should he be sentenced to an ICO and stated he would prefer to address his drug use without the assistance of programs or counselling.

In sentencing the man, Justice Loukas-Karlsson quoted former Justice Penfold, who had noted the irony in a situation where an offender’s troubles because of drugs became a bar to them getting the assistance of an ICO: “It would be curious if Intensive Correction Orders were only available to people who really did not need any help.” Justice Loukas-Karlsson quoted a number of cases where ICOs had been made despite assessments finding offenders unsuitable. “It must be stated there are understandable concerns [from the assessment author] should the offender continue to use illegal substances,” Her Honour said. “Nevertheless, one objective of imposing an ICO is ensuring the offender has assistance in ceasing to use illegal substances, thereby improving himself and becoming a worthwhile member of the community.

“The Prosecution also submitted that an ICO is appropriate despite the recommendation of non-suitability by the report’s author.

“The need for correction is at the core of the intensive correction regime. In my view an ICO is appropriate in this case.”

Acceptance into program prior to sentencing

One factor not present in either of the above matters is the situation where an offender has got himself or herself into a rehabilitation program ahead of being sentenced. This can markedly shift the sentencing landscape in an offender’s favour. Time in a full-time residential rehabilitation facility is seen by the courts as “quasi-custody”, which reduces the prison component of any sentence.

While several NSW cases have established something of a rule of thumb, equating time in rehabilitation as equal to 50 per cent of prison time, some cases have gone as high as 75 per cent. In the 2014 decision of R v Walters, the court  went even further, releasing the offender to three years of supervisors with a considerable amount of community service work in consideration of the progress he had made through rehabilitation programs. 

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