Drug Court Act 1998 (NSW)

Drug Court Act 1998 No 150 An Act to provide for the establishment of the Drug Court of New South Wales, for the referral of drug offenders to the Drug Court, and for the supervision of drug programs by the Drug Court; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Drug Court Act 1998. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects (1) The objects of this Act are— (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies. (2) This Act achieves its objects in relation to eligible persons by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. (2A) This Act achieves its objects in relation to eligible convicted offenders by establishing a scheme for compulsory drug treatment and rehabilitation for certain drug dependent persons. (3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen. 4 Definitions (1) In this Act— Compulsory Drug Treatment Correctional Centre has the same meaning as in Part 4A of the Crimes (Administration of Sentences) Act 1999. compulsory drug treatment detention means detention in accordance with Part 4A of the Crimes (Administration of Sentences) Act 1999. compulsory drug treatment order means an order made under section 18C. court includes a Magistrate. Drug Court mean the Drug Court of New South Wales constituted by this Act. drug offender means a person who has been dealt with under section 7A or 7B. eligible convicted offender is defined in section 5A. eligible person is defined in section 5. exercise a function includes perform a duty. function includes a power, authority or duty. initial sentence means any sentence imposed on a person in accordance with section 7A or 7B, and includes any sentence that is added to the initial sentence in accordance with section 7C. Judge means a person appointed to be a Drug Court Judge, as referred to in section 20 (1). member of staff of the Drug Court means any person appointed as an officer of the Drug Court as referred to in section 28 (1) or whose services are used by the Drug Court as referred to in section 28 (2), and includes any other person prescribed by the regulations. program means the program of supervision and control that arises from the conditions accepted by a person and imposed by the Drug Court under section 7A (5) (a) or 7B (7) (a). referring court means the court by which a person has been referred to the Drug Court under section 6 or 7. registrar means the registrar of the Drug Court. Senior Judge means the person appointed to be the Senior Judge of the Drug Court, as referred to in section 21 (1). suspension order means an order under section 7A (5) (b) or 7B (7) (b) by which a person's initial sentence is suspended for the duration of the person's program. (2) In this Act, a reference to the criminal jurisdiction of the Local Court includes a reference to the jurisdiction exercisable by a Magistrate under the Criminal Procedure Act 1986. 5 Definition of "eligible person" (1) A person is an eligible person if— (a) the person is charged with an offence, other than an offence referred to in subsection (2), and (b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted, be required to serve a sentence of full-time imprisonment, and (c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and (d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and (e) the person satisfies such other criteria as are prescribed by the regulations. (2) A person is not an eligible person if the person is charged with— (a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Chapter 5 of the Criminal Procedure Act 1986) is capable of being dealt with summarily, or (b) an offence involving violent conduct or sexual assault, or (c) any other offence of a kind prescribed by the regulations. 5A Definition of "eligible convicted offender" (1) A person is an eligible convicted offender if— (a) the person is convicted of an offence, other than an offence referred to in subsection (2), and (b) except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed— (i) the unexpired non-parole period of the sentence was a period of at least 18 months, and (ii) the unexpired total sentence was a period of not more than 6 years, and (c) (Repealed) (d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and (e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and (f) the person satisfies such other criteria as are prescribed by the regulations. (1A) Subsection (1) (b) does not prevent a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court). (2) A person is not an eligible convicted offender if— (a) the offence for which the person has been convicted involved the use of a firearm, or (b) the person has been convicted at any time of any of the following— (i) murder, attempted murder or manslaughter, (ii) sexual assault of an adult or child or a sexual offence involving a child, (iii) any offence involving the violent use of a firearm, (iv) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, (v) any offence prescribed by the regulations for the purposes of this section. (3) A person is not an eligible convicted offender if, in the opinion of the Drug Court— (a) the person suffers from a mental condition, illness or disorder that— (i) is serious, or (ii) leads to the person being violent, and (b) the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program. Part 2 Drug Court programs Division 1 Acceptance into program 6 Courts may refer persons to Drug Court during proceedings for offence (1) This section applies to such courts and proceedings as are prescribed by the regulations. (2) It is the duty of a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court— (a) to ascertain whether the person appears to be an eligible person, and (b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence, and (c) if so, to refer the person to the Drug Court to be dealt with for the offence. (3) The power conferred on a court by this section is to be exercised as soon as practicable after the person first comes before the court in connection with the offence, but may be exercised at any time— (a) in the case of a Magistrate conducting committal proceedings under the Criminal Procedure Act 1986, before the Magistrate has committed the person for trial or sentence in relation to that offence, and (b) in any other case, before the person is sentenced or re-sentenced for the offence. 7 Courts may refer persons to Drug Court during proceedings for failure to comply with conditions of good behaviour bond (1) This section applies— (a) in relation to a person who is, at the time of his or her appearance in court, participating in a program into which he or she has been accepted as a result of previous proceedings under this Act—to any court before which such a person appears, or (b) in relation to any other person—to such courts and proceedings as are prescribed by the regulations. (2) It is the duty of a court before whom an offender appears under section 98 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) in connection with an alleged failure to comply with the conditions of a good behaviour bond imposed under section 12 of that Act (as previously in force)— (a) to ascertain whether the person appears to be an eligible person, and (b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the alleged failure, and (c) if so, to refer the person to the Drug Court to be dealt with for the alleged failure. (3) The power conferred on a court by this section is to be exercised as soon as practicable after the person's first appearance before the court in relation to the alleged failure. (4) This section does not apply to an offender who, at the time of his or her appearance before the court, is in custody under a sentence of full-time imprisonment. 7A Persons accepted into program in relation to offence (1) This section applies to a person who has been referred to the Drug Court under section 6. (2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters— (a) that the person is an eligible person, (b) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence, (c) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act, (d) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations, (e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section, (f) that the person has been informed of the Drug Court's powers under Division 2 and of the respective consequences, as regards the sentence to be imposed under section 12, of the person's compliance or non-compliance with a program, (g) that any person (an affected person) with whom it is likely the person would reside during the period of the person's participation in a program under this Act has consented in writing to the person residing with the affected person during that period. (3) Subject to subsection (4), the Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999. (4) Sections 44–48 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the conviction and sentencing of a person under this section. (5) On or within 14 days after sentencing the person, the Drug Court— (a) must make an order imposing on the person the conditions that the person has accepted as referred to in subsection (2) (e) (the person's program), and (b) must make an order suspending execution of the sentence for the duration of the person's program (the person's suspension order). (6) An order referred to in subsection (5) (a) or (b) may be made in the absence of the person in respect of whom it is made. (7) The kinds of conditions that the Drug Court may impose on the person under this section are as follows— (a) conditions relating to conduct and good behaviour, (b) conditions relating to attendance for counselling or other treatment, (c) conditions relating to the supervision of the person for the duration of a program under this Act, (d) conditions relating to drug testing that the person must undergo, (e) conditions relating to residence, association with other persons or attendance at specified locations, (f) conditions relating to involvement in activities, courses, training or employment for the purpose of promoting the re-integration of the person into the community, (g) conditions relating to conferring rewards of the kind referred to in section 16 (1), (h) conditions relating to the imposition of sanctions of the kind referred to in section 16 (2), (i) any other kinds of conditions that may be prescribed by the regulations, (j) such other conditions as the Drug Court considers appropriate in the circumstances. (8) A person who is convicted and sentenced by the Drug Court under this section may, at the same time or any later time— (a) be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence, or (b) be dealt with in proceedings under— (i) section 107C of the Crimes (Administration of Sentences) Act 1999 on the revocation of a community correction order, or (ii) section 108C of that Act on the revocation of a conditional release order, or (iii) section 98 or 99 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) on the revocation of a good behaviour bond imposed under section 12 of that Act (as previously in force), whether or not the person has been referred to the Drug Court under section 7 in relation to the failure to comply with the conditions of the good behaviour bond, or (c) be dealt with under both paragraphs (a) and (b). (9) Subsections (5) and (6) apply to a sentence under subsection (8) in the same way as they apply to a sentence under subsection (2). (10) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section. (11) A suspension order does not operate to suspend any period of disqualification from holding a driver licence imposed by or under the road transport legislation within the meaning of the Road Transport Act 2013. (12) For the purposes of subsection (2) (g)— (a) the consent of children below a prescribed age, and (b) the consent of persons suffering a prescribed disability, may be given on their behalf by such other persons as the regulations may determine or may, if the regulations so provide, be dispensed with. (13) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only. 7B Persons accepted into program in relation to failure to comply with conditions of community correction order, conditional release order or good behaviour bond (1) This section applies to a person— (a) who has been referred to the Drug Court under section 7, or (b) who has been called on by the Drug Court to appear before it under— (i) section 107C of the Crimes (Administration of Sentences) Act 1999 in relation to a community correction order, or (ii) section 108C of that Act in relation to a conditional release order, or (iii) section 98 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) in relation to a good behaviour bond under section 12 (as previously in force), not being a person who is currently participating in a program into which the person has been accepted as a result of previous proceedings under this Act. (2) The Drug Court may deal with a person under this section in relation to an alleged failure to comply with the conditions of the relevant community correction order, conditional release order or good behaviour bond if, and only if, it is satisfied as to each of the following matters— (a) that the person is an eligible person, (b) that the person admits to having failed, and has in fact failed, to comply with the conditions of the order or bond, (c) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act, (d) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations, (e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her being dealt with under this section, (f) that the person has been informed of the Drug Court's powers under Division 2 and of the respective consequences, as regards the sentence to be imposed under section 12, of the person's compliance or non-compliance with a program, (g) that any person (an affected person) with whom it is likely the person would reside during the period of the person's participation in a program under this Act has consented in writing to the person residing with the affected person during that period. (3) Subject to subsections (4) and (5), the Drug Court deals with a person under this section in relation to a failure to comply with the conditions of a community correction order, conditional release order or good behaviour bond by revoking the order or bond, and convicting and sentencing the person, in accordance with the Crimes (Sentencing Procedure) Act 1999. (4) The provisions of— (a) section 107D of the Crimes (Administration of Sentences) Act 1999 do not apply to a community correction order that is revoked under subsection (3) of this section, and (b) section 108D of that Act do not apply to a conditional release order that is revoked under that subsection, and (c) section 99 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) do not apply to a good behaviour bond that is revoked under that subsection. (5) Sections 44–48 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the conviction and sentencing of a person under this section. (6) For the purposes of this Act, the sentence of imprisonment in relation to which a good behaviour bond referred to in section 12 of the Crimes (Sentencing Procedure) Act 1999 was entered into under that Act is taken to be the sentence imposed under subsection (3) in relation to the bond. (7) On or within 14 days after sentencing the person, the Drug Court— (a) must make an order imposing on the person the conditions that the person has accepted as referred to in subsection (2) (e) (the person's program), and (b) must make an order suspending execution of the sentence for the duration of the person's program (the person's suspension order). (8) An order referred to in subsection (7) (a) or (b) may be made in the absence of the person in respect of whom it is made. (9) The kinds of conditions that the Drug Court may impose on the person under this section are as follows— (a) conditions relating to conduct and good behaviour, (b) conditions relating to attendance for counselling or other treatment, (c) conditions relating to the supervision of the person for the duration of a program under this Act, (d) conditions relating to drug testing that the person must undergo, (e) conditions relating to residence, association with other persons or attendance at specified locations, (f) conditions relating to involvement in activities, courses, training or employment for the purpose of promoting the re-integration of the person into the community, (g) conditions relating to conferring rewards of the kind referred to in section 16 (1), (h) conditions relating to the imposition of sanctions of the kind referred to in section 16 (2), (i) any other kinds of conditions that may be prescribed by the regulations, (j) such other conditions as the Drug Court considers appropriate in the circumstances. (10) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section. (11) A suspension order does not operate to suspend any period of disqualification from holding a driver licence imposed by or under the road transport legislation within the meaning of the Road Transport Act 2013. (12) For the purposes of subsection (2) (g)— (a) the consent of children below a prescribed age, and (b) the consent of persons suffering a prescribed disability, may be given on their behalf by such other persons as the regulations may determine or may, if the regulations so provide, be dispensed with. (13) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only. 7C Persons allowed to continue in program in relation to failure to comply with conditions of community correction order, conditional release order or good behaviour bond (1) This section applies to a person— (a) who has been referred to the Drug Court under section 7, or (b) who has been called on by the Drug Court to appear before it under— (i) section 107C of the Crimes (Administration of Sentences) Act 1999 in relation to a community correction order, or (ii) section 108C of that Act in relation to a conditional release order, or (iii) section 98 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) in relation to a good behaviour bond under section 12 (as previously in force), being a person who is currently participating in a program into which the person has been accepted as a result of previous proceedings under this Act. (2) The Drug Court may deal with a person under this section in relation to an alleged failure to comply with the conditions of the relevant good behaviour bond if, and only if, it is satisfied as to each of the following matters— (a) that the person is an eligible person, (b) that the person admits to having failed, and has in fact failed, to comply with the conditions of the bond, (c) that, having regard to the person's antecedents, it would be appropriate for the person to continue to participate in a program under this Act, (d) that the person consents to being dealt with under this section, (e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section. (3) Subject to subsections (4) and (5), the Drug Court deals with a person under this section in relation to a failure to comply with the conditions of a community correction order, conditional release order or good behaviour bond by revoking the order or bond, and convicting and sentencing the person, in accordance with the Crimes (Sentencing Procedure) Act 1999. (4) The provisions of— (a) section 107D of the Crimes (Administration of Sentences) Act 1999 do not apply to a community correction order that is revoked under subsection (3) of this section, and (b) section 108D of that Act do not apply to a conditional release order that is revoked under that subsection, and (c) section 99 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) do not apply to a good behaviour bond that is revoked under that subsection. (5) Sections 44–48 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the conviction and sentencing of a person under this section. (6) For the purposes of this Act, the sentence of imprisonment in relation to which a good behaviour bond referred to in section 12 of the Crimes (Sentencing Procedure) Act 1999 was entered into under that Act is taken to be the sentence imposed under subsection (3) in relation to the bond. (7) On or within 14 days after sentencing the person, the Drug Court— (a) must make an order imposing on the person the conditions that the person has accepted as referred to in subsection (2) (e) (the person's program), and (b) must make an order suspending execution of the sentence for the duration of the person's program (the person's suspension order). (8) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section. 7D Persons not accepted into program in relation to offence (1) This section applies to a person who has been referred to the Drug Court under section 6 but whom the Drug Court has not dealt with under section 7A. (2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters— (a) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence, (b) that the person consents to being dealt with under this section. (3) The Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999. (4) If the person does not consent to being dealt with under this section or in such other circumstances as the Drug Court may determine, the Drug Court is to refer the person back to the referring court. (5) In the case of a person who has been referred to the Drug Court for 2 or more offences by 2 or more referring courts, the Drug Court may refer the person back to any one of the referring courts to be dealt with— (a) for the offences for which the person was referred by that court, and (b) for such of the other offences as are within the criminal jurisdiction of that court. (6) In dealing with a person for an offence referred to in subsection (5) (b), the court to which the person is referred back is taken to be the referring court for the purposes of subsection (7). (7) If the Drug Court refers a person back to the referring court, the proceedings against the person are to be continued before the referring court at a time and place specified in the order, as if— (a) the person had not been referred to the Drug Court, and (b) the proceedings had merely been adjourned to the time and place specified in the order. (8) A person who is convicted and sentenced by the Drug Court under this section may, at the same time or any later time— (a) be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence, or (b) be dealt with in proceedings under— (i) section 107C of the Crimes (Administration of Sentences) Act 1999 on the revocation of a community correction order, or (ii) section 108C of that Act on the revocation of a conditional release order, or (iii) section 98 or 99 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) on the revocation of a good behaviour bond imposed under section 12 of that Act (as previously in force), whether or not the person has been referred to the Drug Court under section 7 in relation to the failure to comply with the conditions of the good behaviour bond, or (c) be dealt with under both paragraphs (a) and (b). (9) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only. 7E Persons not accepted into program in relation to failure to comply with conditions of community correction order, conditional release order or good behaviour bond (1) This section applies to a person— (a) who has been referred to the Drug Court under section 7, or (b) who has been called on by the Drug Court to appear before it under the relevant provisions referred to in subsection (3), but whom the Drug Court has not dealt with under section 7B or 7C. (2) The Drug Court is to deal with a person to whom this section applies in accordance with those relevant provisions. (3) For the purposes of this section, the relevant provisions are— (a) section 107C of the Crimes (Administration of Sentences) Act 1999 in relation to a community correction order, or (b) section 108C of that Act in relation to a conditional release order, or (c) section 98 of the Crimes (Sentencing Procedure) Act 1999 (as previously in force but continuing to apply under clause 76 (3) of Schedule 2 to that Act) in relation to a good behaviour bond under section 12 (as previously in force). 8 (Repealed) Division 1A 8AA–8AD (Repealed) Division 2 Administration of program 8A Statutory conditions of program (1) It is a condition of a drug offender's program that the Drug Court may, with the consent of the drug offender, commit the drug offender to a correctional centre for up to 21 days at a time if, in the opinion of the Drug Court, such action is necessary to facilitate— (a) detoxification of the drug offender, or (b) assessment of