There are a number of specialist courts sitting in the Magistrates Courts which offer intervention programs to defendants who meet the particular program's eligibility criteria. These are the Nunga Court (also known as Aboriginal Court Day and Aboriginal Sentencing Court), the Magistrates Court Diversion Program (which deals with defendants with mental health disabilities), the Family Violence Court, the Drug Court and the Treatment Intervention Program. Participation in an intervention program is voluntary and requires the consent and cooperation of the defendant.
On occasion, a duty solicitor may be called upon to provide advice to a defendant about a specialist court intervention program, or to provide assistance with an application to divert offence(s) for assessment for an intervention program, or to appear in a specialist court for a defendant (usually on the instructions of the defendant's solicitor). This chapter provides information relevant to duty solicitor work, such as the referral process, and eligibility criteria for each program. It also provides a basic outline of practice, procedure and the underlying principles from which each specialist court operates.
Brief explanations are provided for some of the terminology related to court intervention programs and specialist courts [see Sentencing chapter for underlying sentencing principles including rehabilitation].
The term co-morbidity is used when an individual is found to suffer from two or more conditions at the same time. Within the context of the criminal justice system and specialist court intervention programs, the term co-morbidity may refer to the situation where a defendant suffers from drug dependence and mental health problems at the same time.
Empirical research indicates that a reduction in rates of recidivism can occur when certain criminogenic factors associated with criminal behaviour are addressed through intervention that promotes behavioural and attitudinal change. These factors may include: drug dependence, mental health issues, lack of self-control, lack of problem-solving skills, antisocial attitudes, peer group pressure, or lack of employment. Towards this end, specialist court intervention programs generally seek to address such criminogenic factors in order to break the cycle of criminal offending.
Within the context of the criminal justice system the terms diversion and therapeutic intervention can refer to rehabilitation programs offered by courts which address attitudes and behaviours related to criminal offending. Court proceedings may be adjourned to allow a defendant the opportunity to undertake treatment by participating in an intervention program designed to address specific issues or needs. Having completed an intervention program a defendant returns to court for sentencing.
In a broader context the terms diversion and therapeutic intervention can also refer to programs which completely divert offenders away from the criminal justice system, and offer intervention by way of education and counselling, such as the Police Drug Diversion Scheme for low level cannabis users.
This refers to the belief that all problem-solving courts should adopt evidence-based practice. In essence, all decision making, including the selection of specific intervention and treatment programs, should be based upon empirical evidence and reliable research. For example, the assessment procedures adopted by specialist courts should rely upon recognised and empirically valid assessment tools. Likewise, specialist courts should adopt interventions, treatment and other services based upon reliable evidence of the success of such interventions, treatment and other services.
A court intervention program is one which is primarily involved with the supervised provision of programs which individually or in combination deliver treatment, rehabilitation, behaviour management, or access to support services to address behavioural problems associated with substance abuse, gambling addiction or mental impairment [see Bail Act 1985 s 3; Sentencing Act 2017 (SA) s 5 for definition]. Participation in an intervention program is voluntary and a defendant must be willing to give consent to the assessment and monitoring procedures.
Problem-solving courts use the authority invested in them to provide and supervise therapeutic interventions designed to address criminogenic factors which are known to influence criminal behaviour. Problem-solving courts recognise and work collaboratively with other social science disciplines and community service providers in order to address broader social problems through the treatment of individual offenders. The courts aim to address social issues, such as the cost and impact of crime on the community and recidivism rates, through intervention that addresses the underlying causes of crime. This represents a shift from a traditional criminal court approach which focuses on the offence, and punishment of the offender.
Where criminal behaviour is repeated or habitual or where there is a relapse into criminal behaviour.
Restorative justice programs provide for mediated encounters between victims and offenders to allow the victim to address an offender about the impact that the offending has had upon him or her, and also to allow the offender to have an opportunity to take responsibility for his or her criminal behaviour. A further aim is for restoration. This may be achieved through discourse, an apology to the victim, or other means of making amends.
In 2004 the Adelaide Magistrates Court introduced a Restorative Justice Pilot Program as a post-plea and pre-sentence option for defendants. The program has since ceased operation. However, specialist courts such as the Nunga Court (also known as Aboriginal Court Day) still incorporate restorative justice principles.
The concept of therapeutic jurisprudence originated from mental health law research conducted in the United States. The research concluded that the legal system is capable of causing anti-therapeutic or therapeutic outcomes for all participants. Interactions within the legal system impact on the physical, emotional and psychological wellbeing of all participants, and the impact can be either positive or negative. Recognising that a court is uniquely in a position to positively influence the lives of those people who appear before it, proponents of therapeutic jurisprudence are mindful of the wellbeing of all courtroom participants, and advocate for court procedures and processes which are likely to enhance therapeutic outcomes.
The adoption of the principles of therapeutic jurisprudence by members of the legal system has resulted in cooperation between courts and social science disciplines (psychology, psychiatry, criminology and social work) to explore how the reform of courts and court processes can enhance therapeutic outcomes. This has provided the impetus for many innovative court developments, such as drug courts and community courts, and has led to an exploration of more effective sentencing options, including more emphasis on offender rehabilitation.
The Bail Act 1985 (SA) and the Sentencing Act 2017 (SA) specifically provide for bail to allow a defendant to undertake assessment for, and participation in, an intervention program. The relevant provisions are outlined below [see also Bail chapter].
A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt or, in the case of the Mental Health Diversion Court, where there is an admission that the factual elements of the charge are not contested, and grant bail to allow a defendant to undertake an assessment of his or her capacity and prospects for rehabilitation, and eligibility for participation in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(a) and 29(1)(c); and Sentencing considerations (below)].
A court may order an assessment of a defendant to determine an appropriate intervention program, and whether or not that person meets the eligibility criteria of the program [see Bail Act 1985 (SA) s 21B(3)]. A court may release a defendant on bail with a condition that he or she attends an appointment to undertake assessment for an intervention program [see Bail Act 1985 (SA) s 21B(3)].
When a defendant fails to comply with a condition of bail to attend an assessment, the court must determine whether the failure to comply with the order to undertake an assessment constitutes a breach of the bail agreement [see Bail Act 1985 (SA) s 21B(6)]. Failure to attend an assessment, in itself may be considered by the court as indicating an unwillingness to participate in the assessment and program [see s 21B(6)]. The court has the discretion to allow a defendant a further opportunity to attend an assessment where there has been a previous failure to attend. The court may at any time make an order to revoke or vary the bail condition [see s 21B(5)].
| DEFENDANTS WHO MAY BENEFIT FROM AN INTERVENTION PROGRAM |
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The question of whether a defendant in custody may be eligible for participation in an intervention program may arise from the Form 2 (which is a written record of the reasons for a refusal of police bail [see Bail Regulations 2015 (SA) sch 1 Form 2), or from the contents of a Bail Enquiry Report, or during the taking of instructions for a bail application. For example, the Form 2 or a Bail Enquiry Report may highlight a history of drug addiction or mental impairment. The instructions of the defendant or his or her demeanour (such as appearing to be under the influence of drugs, or clearly suffering from a mental impairment) may suggest a potential benefit from participation in an intervention program. When this occurs, you should provide the defendant with some basic advice about the benefits of an intervention program, and take instructions as to whether or not the defendant agrees to be assessed for one. Similarly, defendants who are not in custody frequently attend at the Duty Solicitor's office for minor assistance, sometimes accompanied by a mental health or other support worker, and through their demeanour or history may reveal a potential eligibility for participation in an intervention program. In these situations a defendant should be given basic advice about the availability of the appropriate program, and the benefits of participation, and further advice about applying for legal aid or private representation if ineligible. |
A court may adjourn sentencing proceedings, upon a guilty plea or a finding of guilt, or following an admission of the factual elements where mental health is an issue, and grant bail to allow a defendant an opportunity to demonstrate that rehabilitation has taken place and to allow him or her to participate in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(b) and 29(1)(d); and Sentencing considerations (below)]. A court may not release a defendant on bail to undertake an intervention program unless satisfied that the person meets the eligibility criteria of the program, and services are available for the defendant to undertake the program [see Bail Act 1985 (SA) s 21B(2)(b)].
Following an assessment for participation in an intervention program, the court is provided with a certificate indicating whether the applicant is considered to be eligible to participate in the program, the availability of services, and whether the defendant has cooperated with the assessment process [see Bail Act 1985 (SA) s 21B(7)]. Once it is determined that the defendant is a suitable candidate for participation in a program, he or she may be released with a condition of bail that he or she is to undertake the intervention program [see s 21B(1)].
Where a person is considered to have failed to comply with a condition of an intervention program, the matter is referred back to court for consideration. The court must determine whether or not the failure to comply constitutes a breach of a condition of bail [see Bail Act 1985 ss 21B(6) and 21B(7)]. Failure to comply with a condition of an intervention program may in itself be considered by the court as an indication that the person is unwilling to continue participation in the program [see s 21B(6)]. However, the fact that a defendant has performed badly or failed to make satisfactory progress in an intervention program is not relevant to the eventual sentencing process [see Sentencing Act 2017 (SA) s 11(7)]. The court may at any time make an order to revoke or vary the bail condition [see Bail Act 1985 (SA) s 21B(5)].
Where a defendant is excluded from participation in an intervention program (including at the assessment stage) due to a lack of procedural fairness that defendant is eligible for a judicial review [see Crockford v Adelaide Magistrates Court (2008) 100 SASR 195;[2008] SASC 62].
The Sentencing Act 2017 (SA) specifically provides for the deferral of sentencing to allow a defendant to undertake assessment for, and participation in, an intervention program. The relevant provisions are outlined below [see also Guilty Pleas and Sentencing chapters].
Section 29 of the Sentencing Act 2017 (SA) allows for the deferral of sentencing for a defendant to demonstrate that rehabilitation has taken place, or for his or her participation in an intervention program [see Sentencing Act 2017 (SA) ss 29(1)(b) and 29(1)(d); Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 for common law principles]. As a general rule, a court may adjourn sentencing proceedings for up to twelve months from the date of the finding of guilt to allow a defendant to undertake rehabilitation [see s 29(2)].
An adjournment may be extended beyond twelve months where a defendant is about to commence, or is participating in an intervention program, has demonstrated a commitment to addressing the causal problems which led to the offending, and where a further extension would allow a defendant to complete or participate in an intervention program [see Sentencing Act 2017 (SA) s 29(3)]. In determining whether or not to extend an adjournment beyond twelve months, the court is not bound by the rules of evidence, and may inform itself on the basis of a written or oral report from a person in a position to provide such a report [see s 29(4)]. Any person who provides information to the court (written or oral) is liable to be cross-examined on any matters contained in their report [see s 29(5)]. Any statement, fact or opinion contained in a report must be disregarded by the court if challenged by prosecution or a defendant unless it is substantiated on oath [see s 29(6)].
The Sentencing Act 2017 (SA) provides the matters relevant to sentencing which must be considered by a sentencing court [see Guilty Pleas chapter for a detailed discussion of Sentencing Act 2017 (SA) ss 9 -11; Sentencing chapter for sentencing purposes, principles and factors]. Whilst a sentencing court must weigh and consider all sentencing factors, the defendant's prospects of rehabilitation is specified as an individual sentencing factor [see Sentencing Act 2017 (SA) s 11(1)(h)].
A sentencing court might treat a defendant’s rehabilitation through participation and achievements in an intervention program as relevant to sentence [see generally Sentencing Act 2017 (SA) ss 11(1)(h) and 11(6)]. A sentencing court may consider a non-custodial sentence due to a defendant’s demonstrated rehabilitation in an intervention program, where imprisonment prior to participation on the program was almost certain [see Germain v Police [2006] SASC 340; R v Moore (2009) 263 LSJS 183; [2009] SADC 56].
The fact that a defendant has not participated in an intervention program, or performed badly, or did not make satisfactory progress, is not relevant to sentence [see Sentencing Act 2017 (SA) s 11(7); Ashton v Police (2008) 101 SASR 102; [2008]SASC 174]. For those defendants who fail to successfully complete an intervention program, there is often room to argue that even though they have not completed the program, they have nevertheless demonstrated some progress towards rehabilitation.
The Sentencing Act 2017 (SA) provides for participation in an intervention program after sentence as a condition of bond [see s 98(1)(e)]. Before such a condition can be imposed in a bond, a court must first be satisfied that a defendant meets the eligibility criteria of the intervention program and services are available for the defendant to undertake the program [see s 98(5)]. A court may order an assessment of a defendant to determine the appropriate form of intervention, and his or her eligibility to participate in such an intervention [see s 98(6)].
Once a defendant is assessed as eligible for participation in an intervention program, the court is provided with a certificate in confirmation [see Sentencing Act 2017 (SA) s 98(7)(a)]. Upon completion of an intervention program, a certificate confirming compliance with conditions regulating participation may also be made available to the court [see s 98(7)(b)].
The following paragraphs provide an outline of the specialist courts and a guide to the referral processes for each court. Whilst the legislation (as cited above) provides the foundation for practices and procedures in specialist courts, a number of these courts are in the process of restructure which may affect the current and future assessment procedures, eligibility criteria, and availability of interventions, treatment and other services. As specialist courts operate on the principles of evidence-based and best practice, they are necessarily subject to change from time to time.
The Nunga Court Division of the Magistrates Court formally commenced on 1 March 2023. It had been operating in practice from as early as 1999, in initially at Port Adelaide before beginning at other locations. Whilst typically referred to as the Nunga Court, it has also been referred to as Aboriginal Court Day or the Aboriginal Sentencing Court.
The Nunga Court provides Aboriginal defendants with a culturally-appropriate sentencing option through participation in a sentencing conference. This process aims to overcome cultural barriers to understanding the law, court practice and procedure. It also seeks to build relationships with Aboriginal communities and organisations, reduce offending, and provide holistic outcomes for Aboriginal defendants through referrals to appropriate medical, mental health and other rehabilitation services.
Pursuant to section 9AA of the Magistrates Court Act 1991 (SA), the purpose of the Nunga Court is to:
The Nunga Court operates from the Port Adelaide, Murray Bridge, Port Augusta, Mt Gambier, Pt Lincoln and Ceduna Magistrates Courts. The Courts Administration Authority Nunga Court Bench Book provides an overview the legislation, rules and practices of the Nunga Courts at Port Adelaide and Murray Bridge.
Sentencing procedures are less formal when facilitated through a sentencing conference. The Nunga Court is required to be conducted with as little formality as possible, as quickly as reasonably practicably and in a way that is likely to be understood and followed by the defendant, the defendant's family members and any other members of Aboriginal and Torres Strait Islander communities [s 9AA(4)].
The Nunga Court must be assisted by one or more [s 7C]:
The Nunga Court may also be assisted by any other person the Court deems appropriate. The person or people assisting the Nunga Court do so by providing advice on Aboriginal and Torres Strait Islander society and culture, and any other matter the Court considers appropriate. Aboriginal Justice Officers can also provide the Magistrate with advice on relevant cultural and community issues.
All participants (including the Magistrate) sit on the same level. Victims, family and community members are encouraged to attend the court and to participate in the sentencing conference. The Aboriginal Justice Officer provides guidance and support to defendants, their families and the community on court process and outcomes (including reminders of pending court days and times, and assistance in understanding bail and bond conditions). In addition, the Aboriginal Justice Officer provides cultural awareness education to members of the judiciary and court staff, and education to Aboriginal communities about the legal system.
The previous Criminal Law (Sentencing) Act 1988 (SA) was amended in 2005 to provide legislative support to the practice and procedure adopted by the Magistrates Courts facilitating Aboriginal Court Day. Such practices continued through the operation of section 22 of the Sentencing Act 2017 (SA) which provided for the sentencing of an Aboriginal defendant in a less formal manner by way of a sentencing conference, and empowers the sentencing court to take into consideration any views expressed at the conference [see s 22(1)(b)]. Any court of criminal jurisdiction could convene a sentencing conference in accordance with section 22 when sentencing an Aboriginal defendant, where the defendant consented to the process. For example, the Supreme Court has conducted sentencing conferences to sentence Aboriginal defendants [see R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237 at paras 3, 4 and 17;R v Grose (2014) SASFC 42 where on appeal the Full Court ordered that the matter be remitted back to the District Court, to convene a sentencing conference].
Section 22(2) of the Sentencing Act 2017 (SA) prescribes that a sentencing court is not required to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene one [s 22(2)].
A sentencing court should conduct an analysis of whether a sentencing conference should be held, with regard to the purpose of the sentencing conference techniques, as in R v Grose, Sulan J added at [122]:
'The Judge, in determining that he would not order a s 9C conference, appears to have decided that, because a sentence of imprisonment was inevitable, he would not be assisted by convening such a conference. The very fact that the defendant had a troubled past, and that he had continuously reoffended, is a reason for investigating in detail the causes of the defendant’s conduct. The legislation recognises that persons of Aboriginal descent may have issues and factors in their lives which are not necessarily easily understood or revealed in the usual sentencing process.'
Therefore, the sentencing court has a discretion as to whether or not a conference is convened under what is now the Sentencing Act 2017 (SA). The rules that apply in the Nunga Court from 1 March 2023 are summarised below.
The Nunga Court Division is available to a defendant:
The Court should grant eligible applications to be sentenced in the Nunga Court, except where it is not appropriate to do so [Magistrates Court Act 1991 (SA) s 9AA(2) and (3)].
A person is an 'Aboriginal or Torres Strait Islander person' for the purpose of the Nunga Court if the person is descended from an Aboriginal or Torres Strait Islander, and who considers themselves to be, and is accepted by the Aboriginal or Torres Strait Islander community to be, an Aboriginal or Torres Strait Islander [s 3(1a)]. All applicants are assessed by an Aboriginal Justice Officer who must first determine that the defendant is an Aboriginal person.
A defendant who has other unresolved criminal offence(s) in any other court may not be considered appropriate for sentencing in the Nunga Court.
A defendant who is suffering from a mental impairment (as defined by section 30 of the Sentencing Act 2017 (SA), chronic drug or alcohol dependence, or who is a long term recidivist offender) may not be eligible for a sentencing conference [see Magistrates Court Diversion Program; Drug Court]. The Court has a discretion as to whether or not the defendant will be accepted for the Nunga Court, and may refuse an application to be sentenced in the Nunga Court.
Historically, Aboriginal Court Day had been available to Aboriginal defendants who had either entered guilty pleas or been found guilty of an offence(s) and who wished to be sentenced by way of a sentencing conference. The Magistrates Court Act 1991 (SA) limits the jurisdiction of the Nunga Court to persons who have pleaded guilty to offences only [s 9AA(2)].
As the conference will include Aboriginal Elders and Respected Persons from the geographical area near the court, applications should be made to the court nearest the community with which the defendant is connected.
A sentencing conference must include the defendant, the defendant's legal representative and the prosecutor, and may include the victim [see Sentencing Act 2017 (SA) s 22(3)]. Nunga Court sentencing conferences must also include an Aboriginal Elder or Respected Person or a person qualified to provide cultural advice. They may also include a member of the defendant’s family; a person who provides support or counselling to the defendant, or any other person the court considers may usefully contribute towards the sentencing process [s 22(4); see also Magistrates Court Act 1991 (SA) s 7C]. An Aboriginal Justice Officer assists the court by convening the sentencing conference, by providing the court with advice on Aboriginal society and culture, and by assisting Aboriginal persons to understand court procedures, sentencing options and how to comply with court orders [ss 22(1) and 22(6)].
In addition to information relevant to sentence raised and discussed during the sentencing conference, the court may also consider ordering expert reports such as pre-sentence, psychiatric, psychological and anthropological reports; and it may seek further advice from the Aboriginal Justice Officer in order to assess the defendant’s needs and the best means to provide support for those needs through the sentencing process [see Working with Aboriginal Defendants chapter]. The court may consider adjourning the matter to allow the defendant an opportunity to address any issues raised at the conference [see Sentencing Act 2017 (SA) s 29(1); Griffiths v The Queen (1977) 137 CLR 293;[1977] HCA 44 for common law principles; and Deferral of Sentence (above)].
A sentencing conference will ultimately be conducted in accordance with directions given by the presiding judicial officer [Joint Criminal Rules 2022 (SA) r 148.1(3)].
The judgment in R v Wanganeen (2010) 108 SASR 463; [2010] SASC 237recognised the value of sentencing conferences for ‘informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard sentencing procedures ’, and also clarified that:
However, the more recent judgment of R v Grose (2014) 2014 SASCFC 42 (which considered the 2013 HCA case of Bugmy v The Queen (2013) 302 ALR 192) confirmed:
'whilst membership of a particular ethnic or other group is, without more, irrelevant, membership of a particular ethnic or other group becomes relevant when it tells the court something about the offence or the offender relevant to the determination of the appropriate penalty' and
'...in all cases, the court is obliged to consider the extent to which, and the manner in which, those cultural factors impact upon the particular defendant'
per Gray J at [38], [43].
For further information in relation to sentencing principles refer to the Working with Aboriginal Defendants, Guilty Pleas and Sentencing chapters.
The Drug Court is now referred to as the Treatment Intervention Court - please see Duty Solicitor Handbook section on Treatment Intervention Court for detailed information on processes and procedures within this court.
Drug courts originate from the United States, where they developed in the 1980s as a grassroots response to escalating court lists and imprisonment rates. They have since emerged in many countries. Evaluations indicate that drug courts can successfully address drug dependence and reduce recidivism (and in doing so enhance community safety) and are more cost effective than imprisonment.
The Drug Court is now referred to the Treatment Intervention Court - see Treatment Intervention Court for more information.
The Treatment Intervention Court sits in the Adelaide Magistrates Court and accepts applicants with summary and minor indictable offences which are related to illicit drug dependence. The Treatment Intervention Court is a non adversarial court with direct interaction between the presiding judicial officer and each participant when they appear in court.
The Treatment Intervention Court offers defendants an opportunity to address their illicit drug dependence and related criminal behaviour by engaging in an intensive drug rehabilitation program with ongoing judicial supervision and frequent court appearances (called reviews), stringent bail conditions (including home detention), random mandatory urine testing, and attendance at group therapy and individual counselling.
| BAIL CONSIDERATIONS |
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The Treatment Court will not release people who are in custody onto bail until they are assessed as suitable for the program and have suitable accommodation. This is to ensure that participants are not “set up to fail” by being released into the community without full supervision, support and assistance. Most participants will be subjected to home detention bail when first released onto the program.
ACCOMMODATION
The Treatment Intervention Court can provide accommodation for participants; however, applicants need to be aware that there is often a waiting list for available accommodation. |
The Family Violence Court, a specialist court in the Magistrates Court, hears criminal matters connected to domestic and family violence, such as assaults on family members, and applications for intervention orders (even where the relationship has ceased). It sits in the Adelaide, Port Adelaide, Elizabeth, Christies Beach, Murray Bridge, Mount Gambier, Port Augusta and Whyalla Magistrates Courts.
The court can offer support services and protection to women and children, whilst providing certain male defendants (respondents) with an opportunity to address their violent and abusive behaviour by participating in the Abuse Prevention Intervention Program. Participation in this program can occur as a condition of bail or a bond, with ongoing supervision provided by a Community Correctional Services Officer, or pursuant to an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13].
For more information see the Family violence and domestic violence prevention programs.
Criminal offences related to domestic violence can be diverted from a general court list (including from metropolitan courts) to the Family Violence Court for an application for assessment for the program. Upon attendance at the Family Violence Court the applicant is encouraged by the Magistrate to participate in the Abuse Prevention Intervention Program. The Magistrate sitting in the Family Violence Court will consider adjourning or remanding the matter for a period of four weeks with supervised bail (by a Community Correctional Services Officer) and on condition that the defendant attend for assessment, which the defendant is expected to arrange on his or her own behalf by contacting the Clinical Assessment and Liaison Worker for the Abuse Prevention Intervention Program.
An intervention order may require the respondent to undergo an assessment to determine the form of intervention appropriate for the respondent and the respondent's eligibility for the services included in the program [see s 13(1)]. An intervention program is defined as including: supervised treatment, or supervised rehabilitation, or supervised behavioural management, or supervised access to support services, or a combination of any one or more of these designed to address behavioural problems (including problem gambling), substance abuse or mental impairment [see s 3(1) for definition]. An intervention order may require the respondent to undertake an intervention program where the respondent is assessed as eligible for such an intervention program and services are available for the respondent [see s 13(2)]. The respondent must comply with requirements regulating his or her participation in the assessment process and a failure to comply constitutes a contravention of the term of the intervention order [see s 13(3)].
In order to be assessed as suitable for participation in the program, the defendant must acknowledge during the assessment process: their past abuse and acts of violence, that they recognise this behaviour is problematic, and a desire to address their behaviour.
Following assessment of a defendant the court is provided with a report outlining whether the defendant meets the eligibility criteria for the program and any other issues raised at assessment which need to be addressed, including mental health, substance abuse and gambling.
Once a defendant is found to be appropriate for the program, finalisation of their criminal matter(s) is delayed whilst they participate in the program as a condition of bail (or where sentencing has occurred as a condition of bond), or as a condition imposed under an intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA)]. Supervision is provided through a Community Correctional Services Officer.
The Magistrate sitting in the Family Violence Court may request progress reports during the adjournment period. Failure to comply with bail conditions and program requirements during this period is reported to the court and prosecution. Where the Community Correctional Services Officer finds the defendant is failing to comply with conditions of bail, they may ask the court to vary or revoke bail. SAPOL will pursue criminal charges where the behaviour involves further threats or acts of violence. In addition, where the defendant is undertaking an intervention subject to a condition in an intervention order, then that defendant must comply with all requirements regulating his or her participation in the intervention program. Failure to comply with such requirements constitutes a contravention of the term of the intervention order [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(1)].
The Family Violence Court is provided with a final report at the completion of the program. This provides evidence to the court of any behavioural and attitude changes, attendance records and any other issues which may have arisen during the defendant's time in the program. The report will also provide a summary as to whether or not progress has been satisfactory. This report is taken into consideration when the defendant is subsequently sentenced by the court.
Intervention orders aim to prevent domestic or non-domestic abuse by regulating a respondent's behaviour towards one or more protected persons. The law about intervention orders is found in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) .
An intervention order is a civil matter between the police or a private applicant and the respondent. It is not a criminal charge and will not therefore appear on a respondent's antecedent report. However, once an intervention order is in force, it is a criminal offence to breach the order [s 31].
Although an intervention order is not a criminal charge, jurisdiction to hear and determine them is vested in the criminal division of the Magistrates Court [Uniform Special Statutory Rules 2022 (SA) r 6.1].
A police officer or Court may issue an interim intervention order against a person if they have a reasonable suspicion that a person will, without intervention, commit an act of abuse against one or more protected persons and the issuing of the order is appropriate in the circumstances [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6].
These grounds need only be proved on the balance of probabilities [s 28].
What is an act of abuse?
An act of abuse is any act that results in, or is intended to result in:
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) section 8 for detailed examples.
An act of abuse may be domestic or non-domestic. If a respondent is or was formerly in a relationship with the protected person(s), it is referred to as an act of domestic abuse [s 8(8)]. The types of relationships considered “domestic” is quite broad.
In domestic abuse cases, all proceedings must be dealt with as a matter of priority, as far as practicable [s 9]. Where the application is disputed, there are procedures to ensure the matter is resolved as quickly as possible. There will usually only be one adjournment to hear evidence [Uniform Special Statutory Rules 2022 (SA) r 86.2(5)]. If the matter is not resolved, a pre-trial conference will be ordered. If the matter is not resolved then, a date must be set for trial [r 86.5].
The intervention order legislation is anticipatory in nature, aimed at reducing risk of abuse and orders can be issued if there is sufficient reason to suspect harm will occur. Unlike the previous restraining order legislation, there is no requirement to show evidence that actual harm has already occurred or actual threats have already been made. However, to show the respondent may commit an act of abuse, the protected person will need to indicate what behaviour of the respondent gives rise to this suspicion.
In Police v Giles[2013] SASC 11, the Chief Justice confirmed an interim intervention order on an appeal against its revocation by a magistrate. Although he made findings that the respondent did in the past commit acts of abuse against the protected person both before and after their relationship came to an end [at [37]-[40]], he also made the following observations at [30]-[31]:
"First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
As to the first observation, there is no doubt that an order could be based on evidence of a statement of an intention to commit an act of abuse even if the communication was not made to the victim or, indeed, in the case, for example, of a personal diary note, to anyone else at all. As to the second observation, the temporal connection of the past event to the application is a relevant consideration, but, depending on the nature of the circumstances, an event occurring many years earlier may nonetheless found a reasonable suspicion that the defendant [respondent] will commit an act of abuse. "
When is the issuing of the order appropriate?
In determining whether it is appropriate to issue an order and the terms of an order, the issuing authority must recognise and take into account [s 10]:
Children
Any child who may hear or witness, or be exposed to the effects of, an act of abuse committed by a respondent against a protected person may also be protected by the order [s 7(1)(b)].
General terms
An intervention order may impose any prohibition or requirement upon a respondent [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12].
It may prohibit the respondent from:
It may require the respondent to:
Firearms terms
An intervention order must include firearms terms [s 14]. These require the respondent to surrender any firearms in their possession as well as any firearm licence or permit. While an intervention order remains in force against the respondent, they are disqualified from holding or obtaining a licence or permit for a firearm and prohibited from possessing a firearm in the course of their employment [s 14(1)]. If the Court is satisfied that the respondent has never been guilty of violent or intimidatory conduct and needs to have a firearms for purposes relating to earning a livelihood, then the firearms terms need not be included [s 14(2)].
Respondent's proprietary interests
An intervention order may be issued against a respondent in relation to property despite the fact that the respondent may have a legal or equitable interest in the property [s 12(5)].
If the respondent and the protected person(s) lived together in rental housing before the intervention order was made, and the respondent is a party to the rental agreement, a tenancy order can be made in addition to the intervention order. A tenancy order gives the respondent's interest in the tenancy agreement to a specified person(s). Any bond paid by the respondent is not paid out to him or her, but continues to be held as bond for the person given the respondent's interest [see s 25].
The landlord has a chance to be heard before a tenancy order is made – rule 84.3(6) of the Uniform Special Statutory Rules 2022 (SA) provides that if an applicant wants a tenancy order, a Form 28 Notice of Application to Assign Tenancy must be served on the landlord and the respondent.
A landlord who has been notified that a respondent is prohibited from being on rented premises , but nevertheless provides the respondent with a key to the premises or otherwise assists or permits the respondent to gain access to the premises is guilty of an offence [s 32].
| If a respondent is prohibited from going to a home he or she rents or owns, the duty solicitor can ask the Court to make an order for the return or collection of specified items of the respondent's property from the home. |
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Family Law Courts parenting orders
If there are children living with the person protected by the order, then the order may prohibit the respondent from spending time or communicating with them. If possible, the order should be designed to take the children’s need to see the respondent into account [s 10(2)]. The Court must take into account any relevant orders under the Family Law Act 1975 (Cth) when considering whether to make, and the terms of, an intervention order [s 10(2)(a)].
The Court may make the intervention order subject to Family Law Courts parenting orders. However, the Court may also vary, suspend or discharge an existing parenting order provided there is material before it that was not before the Family Law Courts [see s 16 and Family Law Act 1975 (Cth) s 68R].
The following persons may apply to the Court:
If the person entitled to apply is a child, the application may be made by:
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20.
Police issued orders
A police officer of or above the rank of sergeant (or with the authority of a police officer of or above that rank) may issue an interim intervention order against a respondent if:
See Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18.
A police issued interim intervention order serves as an application to the Court for an intervention order and a summons to the respondent to appear in Court for the hearing and determination of the application [s 18(5)].
The police are required to complete a Form 9 Statement of Factual Matters supporting Police Issued Interim Intervention Order, which is to be served on the respondent together with the interim intervention order [Uniform Special Statutory Rules 2022 (SA) r 82.1].
For information regarding the police powers of arrest and detention to facilitate the preparation, service and enforcement of intervention orders see Arrest for intervention orders.
If the Police have issued an interim intervention order, then the Police are required to file with the Court:
See the Courts Administration Authority for the relevant forms.
On the first return date, the Court may hear evidence as to the grounds for the order and where possible, keep an audio-visual record of any oral evidence [r 84.2].
Court issued orders
If an application is made direct to the Court, the Court must [s 21(1)]:
The Court may issue an interim intervention order at this hearing if it appears there are grounds for doing so [s 21(3)].
An interim intervention order issued by a Court will also serve as a summons for the respondent to appear in Court for the hearing and determination of the application [s 21(9)].
If the applicant (other than a police officer) alleges non-domestic abuse, the Court must consider whether mediation is an option before making an order [s 21(4)].
Determination hearing
After the issuing of an interim intervention order by the police officer or Court, the respondent will be required to appear in Court within 8 days (or 2 days after the Court next commences sitting at that place) [s 18(3)].
If the respondent does not appear, the order may be made final [s 23(2)].
At this hearing the Court may [s 23, r 86.2]:
If a respondent wants to dispute an order or the terms of an order, they must attend this hearing. Otherwise the order may be made final, and if the respondent breaches the order they may face a criminal charge.
Recorded evidence
On an application for an intervention order or variation of an intervention order, a police officer may tender a recording (audio or audio visual) of a protected person if the Court is satisfied that the interests of justice require the admission of the evidence [s 28A(2)(a), r 81.3]. The protected person cannot be further examined, cross-examined or re-examined on the recording without the permission of the Court [s 28A(2)(b)].
Special arrangements for evidence and cross-examination
The Court may order that special arrangements be made for the taking of evidence from a protected person [s 29]. A respondent may not personally cross-examine a protected person. Cross-examination is either to be done his or her lawyer or through the Court’s nominee [s 29(4)].
Where a respondent is not represented by a lawyer, the respondent must submit any proposed questions in writing to the Court at least 21 days before the hearing and the Court may give directions to permit further questions as the hearing progresses [rr 87.2, 88.1]. The questions are then asked by the Court or someone the Court nominates.
Bail proceedings
If the prosecution is made aware that the victim or other person connected to the proceedings for an alleged offence feels a need for protection from the alleged offender, they must ensure this is brought to the attention of the bail authority. The bail authority must then consider applying for, or if the Court, making an intervention order, as if an application had been made [Bail Act 1985 (SA) s 23A, r 82.6].
Upon finding of guilt or sentencing
An intervention order may be made by a Court upon a finding of guilt or sentencing as if an application had been made [Sentencing Act 2017 (SA) s 28; see also Sentencing chapter].
National recognition
Since 25 November 2017 local and interstate intervention orders (declared as addressing a domestic violence concern) have been recognised and enforceable nation-wide under provisions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [s 15A, Part 3A]. Foreign orders (e.g. an intervention order issued in New Zealand) may also be recognised Australia wide [Part 4]. In the case of foreign orders registration of the order is required.
If an order is a recognised intervention order (declared as addressing a domestic violence concern) it can be:
recognised and enforced in any jurisdiction [ss 29D, 29I, 29L]
varied in any jurisdiction [s 29E]
revoked in any jurisdiction [s 29F]
For those orders issued prior to commencement (i.e. before 25 November 2017) an application to the court for a declaration that the order addresses a domestic violence concern is necessary before it can be recognised and enforced in other states [ss 29ZB – 29ZF]. The application is made on a Form 4B Originating Application Ex Parte – Intervention Order Act – Domestic Violence Order Nationally Recognised.
When does an intervention order come into force?
An intervention order (whether interim or final) usually comes into force only once served upon the respondent personally [Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 18(4), 21(8), 22(5), 26(7)].
How long does an intervention order last?
An intervention order is ongoing and continues in force until it is revoked [s 11].
Who may apply to vary or revoke an order?
A respondent has to wait at least 12 months after the order was issued to apply to vary or revoke it [ss 15(2) and 26(3)]. The Court may fix a longer date before which the respondent may apply [s 15(1)].
If the Court is not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied, it may dismiss the application [s 26(4)(b)].
Unlike a respondent, a police officer or protected person(s) may apply to vary or revoke an intervention order at any time [s 26(1)].
An application to vary or revoke an intervention order must be made on a Form 112A Interlocutory Application to Vary or Revoke Order – Intervention Order and supported by a Form 7 Affidavit [r 93.2].
A police officer may also apply for an interim variation of an intervention order, pending the final determination of the application, in which case the Court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear [s 26A(1)]. The Court may issue an interim variation of the intervention order at this hearing if it appears there are grounds for doing so [s 26A(3)].
An interim variation of the intervention order issued by a Court will also serve as a summons for the defendant to appear in Court for the hearing and determination of the application under section 26 [see s 26A(8)]. This must be within 8 days of the interim variation (or within 2 days of the Court next sitting at that place) [s 26A(5)].
The police may decline to apply to vary or revoke an intervention order on behalf of a protected person if they believe it will put the protected person at increased risk.
See also Cunningham v Police [2021] SASC 46.
It is a criminal offence to breach an intervention order [Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31].
The maximum penalties are set out in section 31. The maximum penalty is much greater if the breach involved physical violence or the threat of physical violence, or is the second or subsequent breach in a 5 year period [s 31(2aa)]. An offence will be aggravated where the offence is committed in circumstances where the respondent knew or suspected, or ought reasonably to have known or suspected, that there was a reasonable likelihood that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct [s 31(5)].
Can the protected person be charged?
A protected person cannot give a respondent permission to breach an intervention order [s 17]. Further, a protected person will not be charged with aiding, abetting, counselling or procuring a breach unless their conduct aided, abetted, counselled or procured a breach against someone else protected by the order [s 31(3)].
Contacting the respondent may have an impact on any ongoing proceedings. A protected person may also be at risk of committing the offence of aiding and abetting a breach of bail, if the respondent has a non-contact clause in their bail agreement. See Bail Conditions (above).
There is an overlap between intervention orders as determined by the Magistrates Court or Youth Court, and tenancy matters as determined by the South Australian Civil and Administrative Tribunal (SACAT).
Where an intervention order has been issued by the Magistrates Court or Youth Court, or domestic abuse has occurred, a separate application can be made to SACAT for orders to either terminate or replace an existing residential tenancy agreement.
As a result, victims of domestic abuse have the right to:
1. remain in the tenancy (without the alleged abuser); OR
2. have the tenancy terminated so they can leave without being adversely affected financially or otherwise.
A process to remain in the tenancy is also available to non-domestic abuse victims who may choose to apply for tenancy orders in the Magistrates Court as part of their application for an Intervention Order.
SACAT is also able to make orders in relation to:
Any restraining orders in force under either the Domestic Violence Act 1994 or the previous Summary Procedure Act 1921 (SA) immediately before the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) continue in force as if they were intervention orders [s 37].
There are now only two specific types of restraining order that may be made under Criminal Procedure Act 1921 (SA). One is a paedophile restraining order [s 99AA] and the other is a child protection restraining order [s 99AAC].
See Uniform Special Statutory Rules 2022 (SA) Chapter 3 Part 11.
The Magistrates Court Diversion Program aims to address recidivism by providing assistance to defendants who suffer from a mental impairment to address their mental health and related offending behaviour. The program has been operating in South Australian Magistrates Courts since 1999.
As of May 2019, the Magistrates Court Diversion Program (‘MCDP’) is only operating in the regional courts located in Murray Bridge, Mount Gambier, Port Augusta and Whyalla.
In many other metropolitan Magistrates Courts, the program has been replaced with the Treatment Intervention Court - see Treatment Intervention Court.
The Magistrates Court Diversion Program should not be confused with the “section 269 court” which deals with defendants who have a limited defence based on mental health grounds under the Criminal Law Consolidation Act 1935 (SA), Part 8A. The hearing of section 269 matters are not intervention programs as such and are governed by the provisions of the Criminal Law Consolidation Act 1935 (SA), Part 8A [see ss 269C and 269H and Mental Health Issues chapter]. There is a specialist section 269 court which sits regularly - approximately fortnightly - in the Adelaide Magistrates Court. In suburban and regional courts section 269 matters are normally dealt with as they arise by a part-heard Magistrate.
By contrast, the Magistrates Court Diversion Program aims to assist those defendants who would not have available to them a mental incompetence or mental unfitness defence in accordance with section 269 of the Criminal Law Consolidation Act 1935 (SA), but who nevertheless suffer from some sort of mental impairment and their mental impairment has contributed to their offending behaviour.
It is worth noting, however, that it is not uncommon for defendants who do have a section 269 defence but are charged with only very minor offences to choose to seek acceptance into the Mental Health Diversion Program rather than proceed with a section 269 defence because the program offers practical support and monitoring of their disability over a period of time without the requirement to enter a plea of guilty.
Referrals for assessment for participation in this program are made from any originating court, and may be requested by the court, the defendant, prosecution, or defence counsel. A completed referral form must be handed to the clerk of the referring court, who will then forward the form to the diversion program. The matter is then transferred to the diversion court for the next available sitting day.
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Where a defendant is granted bail, it is important that the duty solicitor advise him or her to lodge an application for legal aid as soon as possible, and to include in it a note that they wish to apply for the Magistrates Court Diversion Program. Where a defendant is refused bail, it is important that the duty solicitor clearly mark the “urgent in custody” application at the top with “possible Magistrates Court Diversion Program applicant”. The file will then be assigned to the appropriate in-house solicitor.
UNREPRESENTED DEFENDANTS
Should a duty solicitor become aware of an unrepresented defendant who wants to apply for assessment for the Magistrates Court Diversion Program, or who has recently been diverted for assessment for the program, the defendant should be encouraged to apply for legal aid and to indicate in the application an interest in applying for the diversion program. The Legal Services Commission employs a number of solicitors who work regularly in that jurisdiction.
Where a duty solicitor has an unrepresented defendant who may be eligible for the diversion program and would be eligible for legal aid under the Means/Assets Test, but who has previously been refused legal aid on the grounds that the offence is minor and would not normally carry a risk of imprisonment, it is important that advice is given that the guidelines can, in appropriate cases, be waived. Legal aid may be granted as an exceptional case where the person suffers a mental health disability such that he or she would be disadvantaged if unrepresented. In such a case it is helpful for the duty solicitor to submit a request to Grants asking that the guidelines be waived on the grounds of mental disability and disadvantage. This also applies to defendants with minor charges who may have an actual defence under section 269 but would not normally come within matter guidelines.
If the application for legal aid is granted following reconsideration, the matter would normally be assigned to one of the in-house solicitors who have experience with clients with mental health disabilities and who appear regularly in the Magistrates Court Diversion Program and the section 269 court. However, if an unrepresented defendant has previously been refused legal aid on Means (as distinct from the matter guidelines) you can best assist through the provision of the names and contact addresses of three private solicitors. |
The Magistrates Court Diversion Program targets people (over the age of 18) who have been charged with summary and/or minor indictable offence(s) and who have impaired intellectual or mental functioning.
Section 30 of the Sentencing Act 2017 (SA) defines mental impairment as ‘an impaired intellectual or mental function resulting from a mental illness, an intellectual disability, a personality disorder, or a brain injury or neurological disorder (including dementia) ’ [see s 30(5)].
Eligibility and acceptance into the program is a matter for the Magistrate’s discretion, but it is normally a requirement that there be at least a contributing connection between the defendant’s mental impairment and his or her commission of the acts charged. It is not necessary to show that the offence occurred ‘ in consequence of the mental impairment ’ as is required under the stricter provisions for a defence of mental incompetence under section 269C of the Criminal Law Consolidation Act 1935 (SA). The participant must also be prepared to plead guilty to the most serious offence(s) that they have been charged with.
Applicants are contacted by letter by the Diversion Program staff and are required to attend an appointment for assessment before their first appearance in the Diversion Court. Following their assessment interview, they appear in court with the recommendations of the assessment report made available to the sitting Magistrate, defence and prosecution. Applicants are assessed by the court’s Clinical Advisors who are qualified psychologists. The assessment report includes an assessment of the defendant’s personal and medical background and mental health functioning, a summary as to whether the applicant is suitable for the program and an outline of any specific needs to be addressed during the course of the program.
A Magistrate who is considering whether to accept a defendant into the Diversion Court Program, is not bound by the guidelines for the program [see H v Police (2005) 91 SASR 329; [2005] SASC 143]. The decision as to whether a defendant is to be accepted into the program is a matter for the court’s discretion. Even where the Preliminary Assessment Report indicates that the defendant is “not recommended” for the program, the court may still be persuaded by defence submissions that there are good grounds for allowing the defendant to participate.
Those defendants who are not accepted into the program, will have their matters sent back to the general court list for finalisation at a later date and retain their rights to conduct a defence in accordance with the Criminal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter].
It is a requirement that the defendant’s participation in the program, if accepted, be voluntary, and the defendant can only be accepted into the program if he or she is admitting the objective (factual) elements of the offence(s). The Magistrate will generally expect that the person plead guilty to the most serious offence(s) prior to accepting them into the program. Legal proceedings are adjourned for approximately two months to allow the defendant to access relevant support services, with the defendant attending court bi-monthly for progress reviews (there are usually two) conducted by the sitting Magistrate. A participating defendant is assigned a Clinical Liaison Officer who is there for support and to monitor the progress of the defendant.
Reports are provided to the Magistrate at approximately two month periods outlining progress, success and any difficulties or set-backs faced by the defendant for each review period. The court has discretion to extend the defendantâs participation in the program beyond the usual six months where the defendant may benefit from a longer period of participation.
At the end of the defendant’s participation in the program, the court is provided with a report summarising the defendant’s progress and achievements during the course of the program. This report is considered during the subsequent sentencing of the defendant. Upon successful completion of the diversion program, where the defendant pleads guilty as charged, the Magistrate may consider finalising the charge without conviction or penalty, or may consider any other sentencing option. Where a penalty is likely to be imposed, the defendant retains the right to pursue a defence in accordance with the Crimnal Law Consolidation Act 1935 (SA) s 269 [see Mental Health Issues chapter]. The court also has an important discretion to simply dismiss any charge without a plea being taken or any finding of guilt recorded.
The Sentencing Act 2017 (SA) s 30(1) empowers a court to release a defendant who has been found guilty of a summary or minor indictable offence without conviction and without penalty where the court is satisfied that:
In addition, section 30(2) of the Sentencing Act 2017 (SA) empowers a court to dismiss a charge of a summary or minor indictable offence without any plea being entered (such as where the matter has not been “finally determined”), where:
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In cases where the defendant would have a defence of mental incompetence or is unfit to stand trial under the Criminal Law Consolidation Act 1935 (SA) ss 269C or 269H, but has chosen to participate in the diversion program, it should always be submitted to the court that dismissal of the charge under s 30(2) is the only appropriate course, as the defendant should not enter a plea of guilty where a viable defence is available. If the court declines to proceed under s 30(2) counsel should respectfully submit that the matter must be referred to the pre-trial conference list to pursue an investigation under the Criminal Law Consolidation Act 1935 Part 8A [see ss 269C, 269H and Part 8A]. |
In accordance with section 30(3) of the Sentencing Act 2017 (SA), where a defendant is participating in an intervention program but has not yet completed the program, a court may, instead of releasing the defendant under s 30(2), release the defendant on an undertaking that they will complete the program and then appear before the court for determination, or appear before the court for determination if they fail to complete the program [see Sentencing Act 2017 (SA) s 30(3)].
In the previous Criminal Law (Sentencing) Act 1988 (SA), this provision was not used, possibly because it would undermine the requirement that participation in a diversion program must be voluntary. Nevertheless, the provision still exists in the current Sentencing Act 2017 (SA), which came into operation on 30 April 2018.
Where ss 30(1) and 30(2) of the Sentencing Act 2017 (SA) are not raised, the court will proceed to sentence according to normal sentencing principles, but where a defendant has successfully completed the program the court may treat the defendant’s participation and achievements favourably as relevant to leniency in sentence [ see Sentencing Act 2017 (SA) s 11(6)]. However, the fact that a defendant has not participated in, or has performed badly in, or has failed to make satisfactory progress in an intervention program cannot be treated as an aggravating factor relevant to sentence [see s 11(7)].
The Treatment Intervention Court provides programs to help people charged with offences who have mental health or mental impairment and/or illicit drug use problems.
The Court operates from all metropolitan Magistrates Courts - Adelaide, Christies Beach, Elizabeth and Port Adelaide. It also operates in the Youth Court.
The Treatment Intervention Court replaces the former Magistrates Court Diversion Program (except where the program is still operating in regional Magistrates Courts) and the Drug Diversion Court (although many people still refer to the Treatment Intervention Court as the Drug Court).
What is the rationale for a Treatment Intervention Court?
Empirical research from social science disciplines such as psychology, psychiatry, criminology, social work, medicine and correctional services confirms a relationship between illicit drug use and mental health problems. As such, there is a growing awareness of the link between illicit drug use and mental health: the high rate of occurrence of co-morbidity whereby a person suffers from both conditions at the same time, and the need for intervention and treatment which addresses both conditions, preferably as early as possible. In addition, illicit drug use and mental health problems are identified as criminogenic factors associated with criminal behaviour and research indicates there is a high rate of co-morbidity amongst criminal offenders.
Treatment court programs, such as that offered through the Treatment Intervention Court, recognise the complex interplay between mental health issues, drug dependence and criminal offending, and are able to provide intervention and treatment which address both problems simultaneously.
Treatment Intervention Court Aims
The programs offered through the Treatment Intervention Court aim to improve the health and wellbeing of the participant and reduce recidivism rates by stabilising the defendant's mental and physical health and addressing their drug dependence.
Treatment Intervention Court Streams
There are four treatment streams within the Treatment Intervention Court:
All treatment streams apart from the 12 month substance dependence stream are available at all metropolitan Magistrates Courts - Adelaide, Christies Beach, Elizabeth and Port Adelaide. They are also available in the Youth Court.
The six month streams are aimed at defendants who have committed minor indictable and/or summary offence(s) where the underlying cause of their offending is related primarily to mental impairment issues and/or illicit substance dependence.
The twelve month stream is targeted at defendants who are facing a likely penalty of a term of imprisonment and whose offending is link to illicit substance dependence where a more intensive intervention program is required.
Programs differ depending on the type of six month stream that the defendant is participating in.
Six month substance dependency stream
This stream involves the following program of treatment and intervention:
Six month mental impairment stream
This stream involves the following program of treatment and intervention:
Six month co-morbidity stream
This stream involves a more intensive program that address both mental impairment and substance dependence issues:
The twelve month stream within the Treatment Intervention Court replaced the former Drug Court Program. It is often still referred to as the Drug Court Program.
This stream is only available at the Adelaide Magistrates Court and involves the following intensive program of treatment and intervention:
The 12 month program operates on a points system, where points are incurred for minor non-compliance and a Magistrate has the ability to apply sanctions for non-compliance, which could include bail revocation or a imposing a period of incarceration where the non-compliance is severe. The points system allows for a defendant's progress to be tracked and allows for an assessment of whether they have successfully completed the program.
Criminal matters can be diverted to the Treatment Intervention Court list from the general list for an application for assessment for participation in an intervention program. Guilty pleas must be entered to the majority of criminal matters before the court. Disputed matters must remain in the court of origin until they resolve (by plea or a finding of guilt) and may later join all other matters listed in the Treatment Intervention Court.
Where a defendant's offending warrants a referral to the 12 month substance dependency stream, they will be referred to the Adelaide Magistrates Court (Treatment Intervention Court) list for assessment as to eligibility to participate in the stream.
Referral to Treatment Intervention Court Solicitors
The Commission employs dedicated solicitors who work in the Treatment Intervention Court, and who can represent defendants at an early stage, even before their matters are ready to be diverted into the Treatment Intervention Court. Should a duty solicitor become aware of an unrepresented defendant who wants to apply for participation in the Treatment Intervention Court, or who has had matters recently diverted to the Treatment Intervention Court, it is important that they notify the dedicated solicitors. Where a defendant is granted bail, it is important that the duty solicitor advise him or her to lodge an application for legal aid as soon as possible and to include a note that they wish to apply for the Treatment Intervention Court. Where a defendant is refused bail, it is important that the duty solicitor clearly mark the “urgent in custody” application at the top with “possible Treatment Intervention Court applicant” or “Treatment Intervention Court” where the matters are already diverted. The file will then be assigned to the Treatment Intervention Court solicitors.
The Treatment Intervention Court streams are available to defendants who have entered guilty pleas to the majority of offences or, in the case of those defendants with mental impairment, an admission that the factual elements of the charge are not contested and who are assessed as requiring an intervention by way of addressing illicit drug use, mental health problems, or both.
To be eligible to participate in the twelve month substance dependency stream, a defendant must also:
A person charged with a major indictable offence is not eligible to participate in any stream offered by the Treatment Intervention Court.
Even where the Preliminary Assessment Report indicates that the defendant is not recommended€ for a Treatment Intervention Court program, the court may still be persuaded by defence submissions that there are good grounds for allowing the defendant to participate. For example, a history of offences demonstrating a propensity for violence may not necessarily mean that a defendant would be precluded, and it would still be a matter for the court's discretion when considering an application on behalf of a defendant whose main drug of dependence was alcohol.
Breach of District Court bonds
The Treatment Intervention Court will consider applications by defendants who have breach of bond matters before higher courts.
Parole Board warrants
The Treatment Intervention Court has an arrangement with the Parole Board and is able to accept applications from defendants who are currently in custody on parole board warrants.
Former Treatment Intervention Court participants
The Treatment Intervention Court will consider applications by defendants who have previously participated in a program where they have relapsed and have a fresh criminal offence(s). The court will not accept applications from former participants where the offending breaches a previous Treatment Intervention Court suspended sentence bond.
Once it is determined that a defendant meets the eligibility requirements for participation in a Treatment Intervention Court stream, an assessment report will be ordered by the court. Where a defendant is eligible to participate in the 12 month substance tendency stream, a home detention report will also be ordered.
The assessment includes a recommendation as to whether the applicant is suitable for an intervention, an assessment of illicit drug use and/or mental impairment (which may also require a detailed psychological report) and which intervention stream would best address the intervention needs of the applicant. In addition, an individual case plan is designed to address individual needs.
If a defendant is not recommended for the program, the matter is usually returned to the court of origin for sentencing. The Magistrate sitting in the Treatment Intervention Court has discretion to hear submissions by the defendant and prosecution in relation to the assessment report, and may accept a defendant into the program regardless of the recommendation.
Home detention bail requirements for 12 month stream
All participants accepted into the twelve month stream are subjected to home detention bail with electronic monitoring for the first phase of the program. Defendants participating in the program may only leave their residence with the permission of their Program Supervisor for approved activities. Home detention is monitored to the minute, with all breaches of bail (however minor) being reported to the Treatment Intervention Court Magistrate.
Progress reports are provided to the Magistrate for each court appearance and outline progress, success and any difficulties or set-backs faced by the defendant for each review period. At each progress review, the Magistrate will discuss breaches of bail conditions, drug use and any other issues directly with the defendant. Failure to make positive progress on the program, ongoing breaches of conditions, and re-offending may lead to the termination of the defendant’s participation in the program. Relapses into drug use may result in an immediate return to custody for a period of stabilisation. The court also has discretion to extend the defendant’s participation in the program beyond the usual six months where the defendant may benefit from a longer period of participation.
At the end of the defendantâs participation in the program, the court is provided with a report summarising the defendantâs progress and achievements during the course of the program. The report will also provide a summary as to whether or not progress has been satisfactory. This report is taken into consideration when the defendant is subsequently sentenced by the court.
To achieve successful completion of a treatment program of the Treatment Intervention Court, a defendant must:
Persistent non-compliance with the requirements of the program may result in a recommendation that participation in the program cease.
As the twelve month stream involves the incursion of points for non-compliance with program requirements, an overview can be obtained of whether the defendant has complied with the requirements of the program.
A specialised 6 month treatment intervention program operates in the Port Adelaide Nunga Court. Eligible defendants may defer sentencing for a period of 6 months to enable their participation in the program.
More information on the Treatment Intervention Court can be located via the Courts Administration Authority - Treatment Intervention Court website.
Part 3, Division 2 (rr 150.1-150.5) of the Joint Criminal Rules 2022 (SA) outline sentencing diversion programs available in the Magistrates Court and Youth Court.
The 6 month Treatment Intervention Program stream also operates in the Youth Court.
The Youth Court Treatment Intervention Program commenced in 2011 and replaced the former Youth Court Assessment and Referral Drug Scheme (Youth CARDS) and the former Youth Court Diversion Program (YCDP).
Eligible defendants appearing in the Youth Court are able to access the 6 month Treatment Intervention stream. Young people who may not be eligible for a referral for a Family Conference due to the nature of their offending are targeted for referral to this stream. Treatment services are usually provided by private psychologists.
For information on the practice and procedure of the Youth Court generally, see the Duty Solicitor Handbook chapter- Youth Court.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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