new “a problem oriented court for recidivist drink … · 2013. 11. 25. · 15% of drink driving...

Recidivist Drink Driving Workshop, Tasmania, September 2013

“A PROBLEM ORIENTED COURT FOR

RECIDIVIST DRINK DRIVERS – PROVIDING A FOUNDATION”

Magistrate JD Costello

“A PROBLEM ORIENTED COURT FOR RECIDIVIST DRINK DRIVERS – PROVIDING A FOUNDATION”

You will immediately see from this paper that the direction I come from is one obviously influenced by the adversary system and especially, court processes. My focus, therefore, is more on the “how” rather than “whether”. Let me make the point that the key objective is not so much problem solving but problem minimisation through an evolutionary process. The idea behind the old adage “prevention is better then cure” is also a material part of the discussion.


The basic thrust of this paper is to advocate for a problem oriented court that combines legal sanctions applied simultaneously with (potentially) intensive treatment/education/rehabilitation programs utilizing existing court and related infrastructure and in particular, the bail and probationary processes.

Tasmania is well placed to implement this court because of size and population.

Remote area experience (Queensland) 2005-2006.


For reasons which I shall shortly explain,

such a court may be called for example “ TRAFFIC, ALCOHOL, DRUG RELATED OFFENCES COURT”.


There has been a change in community attitude

towards rejecting drink driving and an acceptance of the proposition that recidivist offenders have an alcohol problem and need treatment.

There is a large minority (approximately 30%) of surveyed persons who believe a zero alcohol in the blood should be mandatory.


I would like to thank Professor Mary

Sheehan from The Centre for Accident Research and Road Safety – Queensland for her kind and generous assistance in the preparation of this paper.


“… the vast majority of offenders appearing for sentence come to the process with issues, problems or characteristics that the sentencing process is poorly equipped to address. But address these the courts must because the courtroom, for many damaged or deprived individuals, is the crucible in which potential life-changing decisions will be made by the court and the offender.”

(Judge Stephen Norrish QC, District Court New South Wales, 2008)


In Yardley v Betts, King J commented upon the policy that lies at the heart of addressing the “special needs” of offenders, sometimes to the exclusion of retribution, punishment and deterrence –

"The protection of the community is

also contributed to by the successful rehabilitation of offenders.”

(Yardley v Betts,(1979) 22 SASR 108 at 112, King J)


In my view:- the judiciary must assume a leadership role. Judge Robert Pirraglia observed at the National

Hardcore Drunk Drivers Project’s judicial summit (USA):- “Hardcore drunk driving is not just a criminal issue. It

is a public health issue second to none. We must change the role of the judge in order to be effective. We need to educate judges about the fact that it is ethical to treat a crime as an illness too.”


A Problem Oriented Court for Recidivist Drink Drivers must – be based on a developed policy framework be funded on a re-current basis survive a change of government be well informed be efficient, well co-ordinated and deliver swift, sure and consistent outcomes. subject to statute, retain a discretion (for example) on Bail special conditions,

disqualification periods, probation and imposition of inter-locks. have the co-operation of the Prosecution and inter-government agencies have a system of credible statistical reporting and analysis of the “effectiveness” of

any treatment/rehabilitation/deterrent program. Other areas of “effectiveness” to be evaluated include:- Stakeholder satisfaction with services Program process efficiencies Enhanced order compliance Reductions in drug-related harms, and improvements in defendants’ health and well-being The impact of the program on justice system work load


DEFINING THE PROBLEM DEVELOPMENTS IN QUEENSLAND TRAFFIC COURT IN QUEENSLAND


Recidivism – QLD Leal, King and Lewis (2008)

15% of drink driving offenders are recidivists. 14% of crash involved drink drivers are recidivists. Tend to be male, younger (<30 years), lower education

level and unmotivated to change drinking behaviour. Strongest predictor of re-offence is number of offences. Time to re-offence shorter with each successive offence.


Profile of crash- involved drink drivers Characteristics of crash involved drink drivers include: Male Under 26yrs 3.6% are of Aboriginal and Islander racial appearance Hold a Queensland Open Licence Mean BAC = 0.14 Live in urban areas of Queensland Crash alone or with one passenger in a car/station

wagon or utility/panel van


Compared to drivers in all crashes, crash involved drink drivers are:

More likely to be male Younger More likely to be of Aboriginal or Islander

appearance Less likely to hold an Open licence More likely to be unlicensed, particularly

cancelled/disqualified Less likely to crash in a large vehicle.


Compared to all crashes, drink driver crashes are:

More severe More likely to occur in rural areas of

Queensland Less likely to occur in Brisbane City More likely to involve inexperience or

speed.


DEVELOPMENTS IN QUEENSLAND


TRAFFIC COURT QUEENSLAND

(An exaggeration given the new interlock provisions but nonetheless, illustrating the continuing and unresolved issues relating to alcohol abuse)


In terms of traffic matters, Magistrates are under enormous pressure. For example, the Brisbane Magistrates Traffic Court (one Magistrate) at 363 George Street, Brisbane would on a regular weekly basis hear no fewer then around 200-300 drink-drive matters. Some days (and seasons) are worse then others. For example on a Tuesday, the Traffic Court Magistrate could have to deal with about 80 matters. Disposition almost invariably consists of a fine and disqualification.


The system of dealing with drink driving in Queensland indicates the following concerns –

The UTL Programs cost in the vicinity of $800 to be paid by the defendant and is

considered by many Magistrates to be too expensive and beyond the reach of many defendants. The uptake rate for UTL Programs is less then satisfactory. In 2012, 42 UTL Programs were run throughout Queensland. Two hundred and ninety-seven (297) offenders were commenced on programs and 37 were excluded due to failure to attend. At this point, there are 360 offenders with a UTL condition on their Probation Order. That is only a small percentage of defendants who appear in court.

Recurring instances if alcohol fuelled violence giving rise to public nuisance and

related charges followed by or proceeded by a charge of drink driving. Excepting for the UTL Program, in the Traffic Court environment, no specific

diagnostic tools are regularly and consistently utilised to evaluate and flush out deep seated problems relating to alcohol uses or abuse.


A PROBLEM ORIENTED COURT V

A SPECIALIST COURT


A problem orientated court is not the same as a specialist court such as for example, the Industrial Relations Court, the Childrens Court, the Family Court and so on.

Common features of Problem Orientated Courts are – case outcomes system change judicial monitoring Collaboration non-traditional roles - (see Berman & Feinblatt 2001; Freiberg 2001; King et al 2009; Popovic 2006).”[i] [i] (Australian Institute of Criminology – View Paper - Lorana Bartels, ISSN 1836-2206 Canberra: Australian Institute of Criminology,

October 2009.)


"History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again."

(Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2010] HCA 1)


The problems associated with the more interventionist role adopted by Judicial Officers in problem-oriented courts are both philosophical and ethical and in particular –

the (im)propriety of judges both meting out and supervising sentences

challenges to judicial independence and the separation of powers through teaming

up with the executive arm of government

impaired judicial neutrality by involvement in extra-judicial activities such as community planning

the need to praise and reward participants where this may conflict with judicial independence and impartiality

if an intervention is a paternalistic intervention, this may be anti-therapeutic because it undermines people’s autonomy in making decisions about their own lives.[i]

[i] Australian Institute of Criminology – View Paper - Lorana Bartels, ISSN 1836-2206 Canberra: Australian Institute of Criminology, October 2009.


HOW SUCCESSFUL ARE PROBLEM ORIENTED COURTS?

Results are unclear. Such courts are common in USA.

At a recent conference in Brisbane, Justice Kofi Barnes of Ontario Supreme Court observed that intensive treatment and supervision was most effective with chronic drink drive offenders.


In June 2012, The Centre for Accident Research and Road Safety Queensland completed a literature review (“CARRS Review”) on the effectiveness of alcohol treatment/education and rehabilitation programs.


The CARRS Review reported five categories of alcohol treatment/education/rehabilitation programs as providing meta-analysis evidence..

Brief interventions Cognitive behavioural therapy Motivational interviews 12 steps/community group Young adults specific and computer based

interventions


In statistics, a meta-analysis refers to methods focused on contrasting and combining results from different studies, in the hope of identifying patterns among study results, sources of disagreement among those results or other interesting relationships that may come to light in the context of multiple studies – Wikipedia online encyclopaedia.


The CARRS Review also indicates that based upon an EU-project investigating best practice with respect to alcohol and drug rehabilitation, the following best practices criteria were developed –

Early intervention (after the first serious offence) Mandatory participation Specific courses for different target groups Allocation to courses based on diagnostics Contents of intervention focused on self-reflection and change in behaviour Educational and therapeutic methods of intervention Consideration given to the cultural and ethnic background of offenders Highly-qualified course leaders, who are independent of authorities; and Several course meetings during several weeks and follow-up meetings


Further, any education program should be specifically designed for adult learners adopting the six principles of adult learning –

Adults are internally motivated and self-directed Adults bring life experiences and knowledge to learning

experiences Adults are goal oriented Adults are relevancy oriented Adults are practical; and Adult learners like to be respected


Multiple survey tools exist to assess alcohol dependence. Those tools depend to a large extent on accurate self reporting. The CARRS Review suggest that answers are more likely to be provided honestly when –

The administrator is friendly and non-threatening The purpose of the questions clearly relates to the

individuals health status The individual is alcohol and drug free at the time Information is seen as confidential; and The questions are easy to understand


There is one important rider to the foregoing. Ian Freckelton, SC and Hugh Selby point out there are important and not fully resolved issues about the parameters of experts such as (for example) mental health experts. Partly it is a question of industrial delineation of competence between psychiatry and psychology: partly it is a question of evidentiary admissibility. This is particularly so in relation to psychologists who may be regarded by the courts as “straying” inappropriately into the area as experts utilising manuals of diagnosis prepared by for example psychiatrists.

“Expert Evidence; Law, Practice, Procedure and Advocacy”, Fifth Edition, Lawbook Co, 2013 at [10.5.40] and [10.5.80] et seq.


This is a potentially difficult area and as I have said above, is unresolved. The short point is that if “treatment and rehabilitation” implies diagnosis across multi-disciplines, then perhaps it would appropriate to consider having an appropriately qualified medical practitioner as team leader/s.


USING EXISTING COURT INFRASTRUCTURE –

BAIL ACT 1994 – SECTION 7(4) (TAS) SENTENCING ACT 1997 – SECTION

37(2)(TAS)


BAIL ACT 1994


SENTENCING ACT 1997 – S 37(2) Probation could be used to initiate a program of treatment/education and/or

rehabilitation – The period of probation should not I suggest be less then nine months. Further, I suggest, there must be no doubt as to the powers of a probation officer

which powers could include – A specific power to require a defendant to submit to treatment as an inpatient or

outpatient of a recognised treatment/rehabilitation centre (Included in the ‘tools of trade’ of the probation officer could be a list (updated daily) of bed/accommodation availability for every residential rehabilitation (and detoxification) centre for adults in Tasmania. Annexure A is a typical example from Queensland.

Requiring the defendant to submit to random breathalyser and testing for illicit

substance abuse. Alcohol addiction or over use is not the only problem the court has to consider.


THE DEFENDANT – TAKING A CLOSER LOOK


CASE STUDY (1) Male Defendant – 26 year old History of Public Nuisance and related

2006 and 2012 Traffic history BAC (blood alcohol content) charge (.052)

21/7/13


CASE STUDY (2) Female Defendant – 47 year old Serious traffic history Repeat drink driver History public nuisance


CONCLUSION


Many defendants bring to court a lifetime of unresolved issues. Judge Norrish QC’s comments, is with respect, correct. These issues can be addressed in some way but not necessarily resolved.

Many young males and an increasing number of young females

at the time of first appearance in court for a blood alcohol content charge (even low range), already have serious issues with respect to alcohol and or substance abuse.

How a defendant presents in court is not necessarily the same as

outside court.

Profiling of a defendant in court is very difficult without proper input.


Process (see paper page 50 et seq) First return date Defendants pleading not guilty Assessment Second return date – final disposition subject to review Time off the road Interlock discretion to be retained by the Magistrate for any reading There can be no doubt as to the Probation Officer’s power to require (for example)

admission as a full time in or outpatient at a rehabilitation and or treatment centre Multi disciplinary teams to be headed by appropriately qualified medical practitioner Magistrate review of defendant’s progress every quarter Nexus between alcohol fuelled offences and BAC (Blood Alcohol Content) charges.

Interlock for repeat offenders even if no BAC history? Revocation of Probation Order Magistrate’s rotation. Support for associated infrastructure (Annex 1) Have a credible statistical reporting in place Interlock and innovation but it should not be overrated Judicial Education critical

new “a problem oriented court for recidivist drink … · 2013. 11. 25. · 15% of drink driving...

Documents