CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

WESTERN AUSTRALIA

In Western Australia, the Bail Act 1982 provides for treatment as a condition of bail in the case of a defendant who is suffering from alcohol or drug dependence. Their pre-court diversion system, the Court Diversion Service (CDS) has been operating since 1988 as a cooperative venture between the West Australian Alcohol and Drug Authority (WAADA), the Department of Corrective Services and non-government drug treatment agencies, coordinated by the WAADA. Any person with a drug dependency problem who is charged with a criminal offence is entitled to apply to the court for inclusion in the CDS program. However, it is important to note that persons are disqualified whose primary drug problem is alcohol or cannabis unless there is evidence of other current substance use that is a contributing factor. Informal referral and preassessment does occur and clients may voluntarily engage with a treatment agency prior to a formal referral by the court (CDS 1993). CDS policy requires only that a person admit to substance use, not to an alleged offence, thus the person can be formally engaged in treatment for an admitted drug problem and maintain a not guilty plea throughout the legal proceedings.

If formal referral does not occur, the CDS is not empowered to oversee the defendant's drug treatment and no CDS reports can be provided to the courts on the defendants progress (CDS 1993).

When formal referral to the CDS does occur, defendants are informed of the relevant drug treatment agencies and their philosophies, and must choose. They are then required to remain with that agency unless otherwise instructed by the CDS officer. Court appearances after formal referral are accompanied by interim reports regarding progress, and at the point of plea or of a finding of guilt the defendant is generally remanded for a full pre-sentence report. The coercive nature of the CDS in engaging drug dependent persons in treatment programs during times of legal crisis is acknowledged, and it is emphasised to potential clients that progress in treatment is only one aspect taken into consideration by the sentencing judge or magistrate (CDS 1993).

CDS personnel expressed the view that, whereas in the early days of the program there were mostly self-referrals, now most are court-generated. People have always had the option of treatment but clearly the catalyst is often a legal charge. The more familiar the courts become with the process the more it is used, and it is regarded as being generally well accepted.

Pre-court or pre-sentence diversion? As long as personal cannabis use/possession/cultivation remains illegal, the fundamental problem exists of the involvement of police discretion and variation in enforcement policies from one officer to another and from one jurisdiction to another. Any contact between the cannabis user and the police (at street level) or between the user and the court has the potential for the individual to have continuing involvement with the criminal justice system. Police discretion at street level at the point of arrest (or non-arrest) is inevitable. Police officers have the discretion regarding whether or not to issue an expiation notice (in jurisdictions such as South Australia) or (in jurisdictions such as Victoria) to choose which (if any) of a number of possible charges they will lay, which can vary from possession to trafficking.

While this could work in the interests of the offender, it may also act in a discriminatory fashion, which is why many would make the argument in favour of diversion systems which bring all offenders before the court, thus guaranteeing them due process. Many lawyers tend to support leaving the conventional criminal processing intact 'to ensure that the diversion program does not result in more coercive treatment of offenders through the non-judicial exercise of discretion' (Dept of Attorney General 1982, p78). In the case of expiation fines, it appears that many fines are not being expiated.15 Therefore the objective of relieving the burden on the courts, while achieved to a substantial degree, has not yet been 100 per cent successful, and there is room for improvement in terms of reducing the number of non-expiators and consequently removing more offenders from the criminal justice system.