Hannam, Hilary --- "A The Youth Drug and Alcohol Court - An Alternative to Custody" [2009] IndigLawB 28; (2009) 7(13) Indigenous Law Bulletin 12

• A The Youth Drug and Alcohol Court – An Alternative to Custody
• History and Background
• Framework
• Practices and Procedures
• Services and Programs
• Reporting-Back
• Outcomes

A The Youth Drug and Alcohol Court – An Alternative to Custody

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.

History and Background

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.

Framework

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.

Practices and Procedures

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.

Services and Programs

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.

Reporting-Back

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.

Outcomes

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.