In South Australia, initiatives have been developed to assist drug users to break the cycle of drug abuse and crime.
Simple possession offences can be dealt with by way of a drug diversion, referred to as the Police Drug Diversion Initiative (PDDI). This scheme enables eligible people to be diverted by the Police to the health system for simple possession offences, instead of being dealt with through the justice system. See below for more information.
Additionally, there are treatment schemes which operate through the Treatment Intervention Court in the Magistrates Court (formerly the Drug Court and the Magistrates Court Diversion Program). This allows eligible offenders who have been charged with drug related offences to access treatment schemes through a Court process.
Aside from these two initiates, Police also have the ability to issue an expiation notice for simple cannabis related offences. This allows the offender to expiate the matter instead of it proceeding to a court hearing, see Simple Cannabis Offences.As simple cannabis offences are dealt with by way of expiation, they are excluded from the scope of the Police Drug Diversion Initiative.
Police Drug Diversion Initiative (PDDI)
The Controlled Substance Act 1984 (SA) [ss 34 - 40A] provides a scheme of rehabilitation for suitable offenders charged with simple possession of drugs of dependence (except simple cannabis offences, as these are dealt with by way of expiation). The diversion scheme is restricted to drug offences and is not available for non-drug offences, even where drug use is a significant component of the offending. The scheme does not apply to:
- a child who is alleged to have committed a simple possession offence;
- a person who is alleged to have committed a simple possession offence and has been charged with a serious drug offence arising out of the same circumstances;
- a person who is alleged to have committed a simple possession offence but who has, in the preceding 4 years, been referred to a nominated assessment service on 2 or more occasions (with each referral being in respect of a separate alleged simple possession offence).
See Controlled Substances Act 1984 (SA) s 34(1).
A serious drug offence means an offence against Part 5, Division 2 (other than Subdivision 4), Division 3, Division 4 (other than section 33I(2), 33K or 33L) or Division 4A [see s 34(2)].
The police must refer allegations of simple possession of defined amounts of drugs of dependence to an assessment service [Controlled Substances Act 1984 (SA) s 36]. Drug and Alcohol Services SA (DASSA) is currently responsible for the statewide coordination of the PDDI program in South Australia, and a number of service providers are accredited to provide drug assessment and treatment services.
Referral to a Drug Assessment and Treatment Service operates as stay of proceedings
The referral pauses a prosecution for the alleged offence (it operates as a stay of proceedings) [s 36(3)].
A prosecution for a simple possession offence cannot proceed unless the referral has been terminated by the service [s 40].
In order to carry out its assessment, the drug assessment or treatment service may request medical records, drug treatment records, criminal records, etc or require the person to undergo a medical examination [s 37(2)].
A referral may be may terminated if a person fails to comply, does not admit allegations or does not wish to participate in the program [s 37(3)]. In this case the prosecution for the simple possession offence can proceed in court.
Undertaking by person on completion assessment
After an assessment, a person enters into an undertaking similar to a bond for a period of up to six months, involving participation in treatment programs, counselling courses. Those under the age of 18 years are excluded from this scheme. If a person undertakes treatment or rehabilitation, the criminal charges are withdrawn [s 38(3)(b)].
Participation not an admission of guilt
The fact that a person alleged to have committed a simple possession offence participates in an assessment or enters into an undertaking is not an admission of guilt [s 40(2)].
On successful completion of an undertaking, the person is immune from prosecution [s 40(4)].
Anything said or done by a person doing an assessment or undertaking is not admissible evidence in any proceedings for the alleged offence [s 40(3)].
More than two diversions in four years
A person is not eligible to participate in the drug diversion scheme where they have:
- committed a simple possession offence; and
- in the preceding 4 years, have been referred to a nominated assessment service pursuant to the drug diversion scheme on 2 or more occasions.
There is therefore a limit on a person accessing the diversion scheme where they have had 2 diversions in a 4 year period.
See Controlled Substances Act 1984 (SA) s 34(1)(c).
Treatment Intervention Court
The Treatment Intervention Court (formerly known as the Drug Court or the Drug Diversion Program) supervises eligible offenders who appear in either the Magistrates Court or the Youth Court and whose offending is related to mental impairment and/or drug dependence issues. The Treatment Intervention Court allows for such offenders to participate in programs that assist with their drug dependency. Two treatment streams relating to drug offending are offered through the Treatment Intervention Court – both of which are highly supervised and involve intensive drug treatment. Other streams apply to offenders with mental impairments. The two streams applying to drug offending are:
- Six month stream, which is aimed at defendants who have committed minor indictable or summary offence(s), where the offence(s) is related to drug use (but is not necessarily a drug offence);
- Twelve month stream (formerly known as the Drug Court or Drug Diversion Program), which is aimed at offenders who are facing a penalty of a likely term of imprisonment, whose offending is linked to drug dependence and who are assessed as needing an intensive drug intervention. This program is only available in the Adelaide Magistrates Court (formerly the Drug Court).
Six Month Stream
This stream involves the following program of treatment and intervention:
- Release on bail;
- Supervised drug screening tests at least twice a week for the first two months of the program, and then at least once a week for the remaining four months;
- Attendance at court fortnightly for the first two months of the program, and then monthly for the remaining four months;
- Weekly or fortnightly contact with a Program Supervisor;
- Referral where appropriate to a drug treatment service or specific program.
The Treatment Intervention Program - 6 month stream operates at all metropolitan Magistrates Courts – Adelaide, Christies Beach, Elizabeth, Port Adelaide. It also operates in the Youth Court.
12 Month Stream (formerly the Drug Court Program)
This stream is only available at the Adelaide Magistrates Court and involves the following intensive program of treatment and intervention:
- Release on home detention bail with electronic monitoring for the first three months of the program, then bail reduced to night curfew for the remaining months;
- Supervised drug screening tests at least three times a week for the first three months of the program, then at least twice a week for the next six months. For the final three months, drug testing is random. A defendant can have their drug screening test results confirmed by laboratory analysis- this will incur a fee;
- Attendance at court every fortnight for the first three months of the program, and then monthly for the remaining months;
- Participation in specialised individual and group treatment programs especially designed to address the nexus between drug use and offending;
- The development of a tailored case management plan tailored to the defendant's needs.
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.
For a defendant participating in either a 6 month or 12 month program, a number of treatment options may be available to them depending on what the court determines to be appropriate. Treatment options can include:
- withdrawal/detoxification treatment;
- group or individual therapy sessions;
- drug relapse prevention group sessions;
- opioid replacement pharmacotherapy;
- referrals to self-help groups such as Narcotics Anonymous, Alcoholics Anonymous, or Smart Recovery.
To be eligible for participation in a treatment intervention program (either 6 or 12 month stream), a defendant:
- must be over 18 years of age (applies to the 12 month stream only);
- must reside within the boundaries of the Adelaide metropolitan area;
- must enter guilty pleas to the majority of offences and, in particular, the most serious offences;
- must be charged with summary and/or minor indictable offences only;
- cannot have any current major indictable matters pending if the sentence is likely to result in truncated participation in the program;
- must provide informed consent to participation.
Referral to the Treatment Intervention Court can be through Magistrate, a legal practitioner or police charging sergeant. It is usually made by a court application upon entering a guilty plea. The Magistrate will then list the matter in the Treatment Intervention Court list after which time an assessment and report will be ordered to determine the defendant's suitability in participating in the program. If a defendant is appearing in a suburban court and there is a possibility they may be eligible for participation in the 12 month stream, the matter will be transferred to the Adelaide Magistrates Court for assessment. Where a defendant is assessed as not being eligible for participation in either stream, their matter will return to the general list.
To achieve successful completion of a treatment program, a defendant must:
- have no fresh charges laid during the program period;
- have attended and engaged in all aspects of the treatment plan;
- have demonstrated a willingness and ability to significantly reduce their substance use. Multiple failed drug screening tests may demonstrate an unwillingess to reduce substance use.
Persistent non-compliance with the requirements of the program may result in a recommendation that participation in the program cease.
Youth Court Treatment Intervention 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.
Port Adelaide Nunga Court 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.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.