Court diversion programs in various forms have been a part of the justice system in Australia for several decades. Court diversion programs in NSW typically involve the Local Court magistrate adjourning a case while a defendant participates in rehabilitation or other programs to assist with his/her needs. Other court programs provide an alternative forum for hearing a case or negotiating an outcome.
The Magistrates Early Referral into Treatment (MERIT) program is a Local Court-based diversion program that targets adult defendants with drug or alcohol problems who are motivated to undertake treatment. At selected courts, the MERIT Program is available to defendants with a primary alcohol issue (whereas at the majority of courts, entry is restricted to those whose primary concern is illicit drugs). Defendants assessed as suitable for MERIT can undertake supervised drug treatment as part of their bail conditions. The primary goal of the MERIT program is to break the drug-related crime cycle by involving defendants in treatment and rehabilitation programs.
The MERIT program was developed in response to recommendations from the NSW Drug Summit (NSW Government 1999). In July 2000 the program was piloted in five courts in the Northern Rivers region of NSW. By 2015 the program operated in 65 NSW local courts where 80 per cent of defendants appear.
The MERIT program is a ‘pre-plea’ drug diversion program, as both referral and treatment occur prior to the defendant making a plea of guilty or not guilty for the relevant offence(s). A MERIT treatment program is typically three months in duration and occurs prior to sentencing while the defendant is on bail. An individual can be referred for a MERIT assessment by the magistrate, the defendant’s lawyer or by self-referral. While referrals can also be made prior to court by the arresting police officer, this method is rarely used.
An evaluation conducted by the NSW Bureau of Crime Statistics and Research (BOCSAR) into the MERIT program found that:
Acceptance and completion of the MERIT program significantly reduced the number of defendants committing any type of offence by an estimated 12 percentage points, and any theft re-offence by four percentage points. This evaluation provides strong support that participation in the MERIT program reduces defendants’ propensity to commit theft offences and, for those who complete the program, substantially reduces their propensity to commit any type of re-offence.
BOCSAR Crime & Justice Bulletin No. 131, July 2009
Youth justice conferencing
Youth Justice Conferencing is a NSW scheme that diverts young offenders away from the courts by providing for young offenders to meet the victims of their behaviour. The aim is to produce an agreed ‘outcome plan’ to restore the harm done and to encourage the offender to overcome his or her offending behaviour.
The scheme is established by the Young Offenders Act 1997 and is administered by NSW Juvenile Justice. A young offender can be referred to a youth justice conference by the investigating police officer, the Director of Public Prosecutions or a court. There are conference administrators throughout New South Wales.
A conference can only be held if the young offender admits the offence and agrees to the conference. The people who are entitled to be present at the conference are the young offender, the conference convenor, a person responsible for the young person (such as a member of the child’s family or a lawyer advising the young person), the investigating officer or specialist youth officer, and the victim, or a representative of the victim, and the victim’s support people.
The aim of the conference is to agree on an outcome plan. An outcome plan might include elements such as making written or oral apologies, making amends to a victim or the community, or participating in an appropriate program. Conferencing is based on the theory of ‘restorative justice’, which means that the object of conferencing is for the offender to be reintegrated back into the community after performing acts that satisfy the victim.
The 2012 Bureau of Crime Statistics and Research (BOCSAR) report Youth Justice Conferences versus Children’s Court: A comparison of re-offending compared re-offending between young people processed in NSW with a Youth Justice Conference and those eligible for a conference but processed in the Children’s Court.
Circle sentencing is an alternative sentencing process for adult Aboriginal offenders in NSW. It began in Nowra in 2002, based on the model of circle courts used in Canada. In NSW, circle sentencing is operating in Armidale, Bourke, Brewarrina, Dubbo, Kempsey, Lismore, Mt Druitt, Nambucca Heads, Nowra and Walgett. Nearly half of all sentences involve an offence of common assault; the next most prevalent offences are unlicensed driving and breaching an apprehended violence order.
There are eight objectives for circle sentencing set out in the Criminal Procedure Regulation 2017, Clause 39:
- to include members of Aboriginal communities in the sentencing process
- to increase the confidence of Aboriginal communities in the sentencing process
- to reduce barriers between the Aboriginal communities and the courts
- to provide more appropriate sentencing options for Aboriginal offenders
- to provide effective support to victims of offences by Aboriginal offenders
- to provide for greater participation of Aboriginal offenders and their victims in the sentencing process
- to increase the awareness of Aboriginal offenders of the consequences of their offences on the Aboriginal communities to which they belong
- to reduce recidivism in Aboriginal communities.
Punishment is incorporated into the sentencing plan. It is not necessarily a prison diversion program, as a term of imprisonment is available to the circle if the circle believes that to be appropriate.
Circle courts operate with the belief that crime is broader than one person, that it has consequences that can affect whole communities, and that ruptures within communities need to be healed. It operates on the understanding that the underlying causes of crime are often more broad than a single incident and need the active participation of the whole community to fix.
Empowering the Aboriginal community in the sentencing process is one of the fundamental aims of circle sentencing. Further, having communities punish their own members means that punishments are seen as real community sanctions and not a continuation of an oppressive colonial system. The offender is confronted with his or her sentencers everyday, making the sentence more real and immediate for offenders.
The circle encourages openness and honesty from its participants and is able to get a full picture of the offence, the offender, the victim and the circumstances that may have led to the crime. The participation of the community in determining a sentence ensures that the sentence is realistic and is not beyond the scope of the community’s resources.
An evaluation of circle sentencing in 2008 by the Bureau of Crime Statistics and Research (BOCSAR) looked at whether participants showed any reduction in the frequency of reoffending; any increase in the length of time before a further offence; or any reduction in seriousness of a future offence. The results showed no difference between the circle sentencing group and a group sentenced through the court.
However, the report commented:
It should not be concluded that circle sentencing has no value simply because it does not appear to have any short term impact on reoffending. Reducing recidivism is just one of several objectives of the process. There is nothing in this analysis to suggest that circle sentencing is not meeting the other objectives. If it strengthens the informal social controls that exist in Aboriginal communities, circle sentencing may have a crime prevention value that cannot be quantified through immediate changes in the risk of reoffending for individuals.
The Forum Sentencing program (formerly known as the Community Conferencing for Young Adults Pilot Program) operates in 47 Local Courts across Sydney, the Hunter and Northern NSW. It commenced in September 2005, originally at two sites: one metropolitan Local Court (Liverpool, in south-western Sydney) and a non-metropolitan Local Court circuit (encompassing Tweed Heads, Murwillumbah, Byron Bay and Mullumbimby Local Courts). The scheme operates as an alternative to regular court sentencing procedures in much the same way as Youth Justice Conferences operate for young offenders. Under the scheme, adults who meet certain eligibility and suitability criteria can be dealt with at a community conference rather than by regular court sentencing procedures.
To be eligible, offenders must:
- be aged between 18 and 24 years
- plead or be found guilty
- be facing the likelihood of a prison sentence
- not be charged with any offences that would exclude them from participating (strictly indictable offences and indictable offences that cannot be dealt with summarily exclude offenders from participating)
- not have a prior record of any offences that would exclude them from participating (eg drug importation, firearms offences)
- be prepared to participate.
In addition, the offender has to be assessed as suitable for the program. Factors taken into consideration include whether the offender:
- accepts responsibility for the offence
- accepts the facts
- has an understanding of the process involved
- is willing to actively participate in deciding how to make reparations for the offence
- understands that the conference is only part of the sentencing process.
The nature of the relationship between the victim and the offender is also taken into account.
Forum Sentencing provides the victim(s) and other people with the opportunity to meet face-to-face with the offender and tell them about the impact of the crime on their lives. During the Forum, the victim(s) can help create a list of actions for the offender that aims to repair harm to the victim and the community, and reduce the offender’s likelihood of reoffending.
The offender has an opportunity to learn about the impact their behaviour had on the victim(s) and other people. To be eligible for Forum Sentencing, the offender must be facing a prison sentence. The offender’s suitability is also carefully assessed – if it is considered the offender may not be respectful to the victim(s), a Forum will not be held.
A 2013 study, Rates of recidivism among offenders referred to Forum Sentencing by the Bureau of Crime Statistics and Research (BOCSAR) found ‘no evidence that offenders who are referred to the NSW Forum Sentencing program are less likely to re-offend than similar offenders who are dealt with through the normal sentencing process’. Commenting on similar findings in a 2006 study, the Director of the Bureau, Dr Don Weatherburn said:
Many of the individuals referred to Forum Sentencing have substantial criminal records, dating back in many cases to their teenage years.
… Entrenched patterns of criminal behaviour are difficult to change without a sustained effort to alter the factors that keep them involved in crime. A program like Forum Sentencing may work more effectively with offenders that do not have substantial criminal records.