NDARC Technical Report No. 96 (2000)
In 1999, the NSW Intersectoral Taskforce on Recidivism of Drug and Alcohol Offenders commissioned the production of a strategic overview of diversion in NSW. The overview was written on the basis of published and unpublished literature and consultations with experts, key players and stakeholders. This overview was completed in October 1999 and was not able to be published until 8 months after its completion. While further developments in drug diversion have occurred between the report being completed and published, much of the information is still relevant and useful. For this reason, the report as written is published here as a National Drug and Alcohol Research Centre Technical Report.
Diversion systems are designed to improve outcomes both for the community at large and for offenders who commit drug-related crimes. Diversion involves a graduated series of interventions that are appropriate and proportionate to the seriousness and circumstances of the offence, and the personal circumstances of the offender. Interventions aim to prevent first offenders from entering the criminal justice system and to divert offenders with drug problems into appropriate treatment.
The target group of diversion strategies is offenders whose criminal offence is related to drug(s). This includes people whose offending is directly linked to intoxication from legal (e.g. alcohol) or illegal drugs; who are charged with use, possession and/or supply of an illicit drug; and/or who have committed an offence in order to obtain drugs or support drug use.
The rationale for having diversion strategies is somewhat complex, because of the range of offences, groups and strategies involved. There is a significant link between alcohol and other drug use and involvement in crime, particularly property crime and violent crime. Such crimes have significant economic and social costs for the community. Law enforcement, court proceedings and detention are costly means of dealing with drug-related offences with limited effect. For example, court services are expensive and there are currently lengthy court delays due to the lack of resources to deal with the number of crimes committed and taken to court. Furthermore, outcomes such as a criminal record and detention can have negative effects on individuals and their families that go beyond the intended consequences. Furthermore, there are high rates of drug problems among offenders in detention, suggesting a need for drug treatment interventions. Recidivism appears to increase with each period of detention and with release without parole, suggesting that avoiding detention or increasing early release to supervised parole programs could reduce recidivism. Drug treatment programs have been found to reduce drug use and criminal behaviour, suggesting that, for those with a drug-related problem, diversion to treatment is likely to have better outcomes than criminal sanctions. Coercion to treatment is considered ethical if the offender has a choice in whether or not to be diverted and a choice in the treatment to which s/he is diverted. In sum, for those unlikely to re-offend, the negative consequences of criminal justice proceedings can be difficult to justify. For those with significant drug-related problems, treatment can be more efficacious than criminal justice sanctions alone.
Opportunities for minimising the progress of offenders through the criminal justice system or diverting them out of the system altogether are:
- Pre-arrest: when an offence is first detected, prior to a charge being laid. This is generally known as police diversion and includes fines, warnings, and cautions.
- Pre-trial: when a charge is made but before the matter is heard at court. Examples are treatment as a condition of bail, conferencing, prosecutor discretion, and assessment and supervision by a panel.
- Pre-sentence: delay of sentence while assessment and treatment are sought.
- Post-sentence: as part of sentencing, for example, suspended sentences, sentencing to treatment (Drug Courts), non-custodial sentences and circle sentencing.
- Pre-release: prior to release from a sentence, on parole.
The characteristics of effective diversion strategies and suggested standards for diversion were outlined. These included, for example, the use of assessment and referral to appropriate treatment programs; appropriate and immediate positive reinforcement for positive behaviour change; and sanctions for non-compliance to treatment contracts. A concern for all diversion strategies was the issue of net widening. If a diversion program is considered less onerous than the usual criminal justice sanction, it might be applied to a person who would not otherwise be sanctioned at all. If the person then performs poorly at diversion or breaches undertakings made to the diversion program supervisors, s/he might then face more serious sanctions than if s/he had not entered the diversion scheme in the first place. In this scenario, diversion has inadvertently increased the likelihood of re-offending and created the collateral problems that it was intended to avoid.
The existing and planned diversion strategies in New South Wales were described and reviewed. On the basis of this review, a model for diversion in NSW is proposed. It is recommended that a range of diversion strategies that are appropriate to the history and risk of criminal and drug-abuse behaviours be available for drug-related offenders. Offenders who are neither substantially involved in crime or drug abuse, nor at significant risk of being so involved in the future, receive sufficient sanctions to deter continued offences, such as a warning or caution from police, without further consequences. The aim of such early diversion is to avoid unnecessary costs and negative consequences of involvement with the legal system for offenders who are unlikely to re-offend. The rationale for diversion in these cases is that involvement with the criminal system for those who are unlikely to re-offend is not cost-effective and likely to have unreasonably negative consequences for the offender. As the criminal career and drug problems escalate, a series of diversion strategies should be available that are appropriate to the history and potential of the offender.
These strategies should include pre-trial strategies such as conferencing; pre-sentence strategies such as the Griffiths Remand; post-sentence strategies such as suspended sentences; and, for those with the most severe history of repeated failure with drug treatment and judicial interventions: Drug Courts. The aim of these diversion strategies is to use the offence as an opportunity to divert the offender to activities and interventions that will have positive outcomes in terms of health, welfare and criminal activity rather than to detention. The rationale for diversion in these cases is that treatment in the community is likely to be more cost-effective than detention. For those offenders who enter detention because the crime necessitates detention or because all other diversion strategies have failed, it is recommended that pre-release diversion be a priority. The aim of diversion in this case is to prevent recidivism by providing appropriate interventions prior to release from detention and after leaving detention.
Given the current state of diversion strategies and plans in NSW described in this report, the following recommendations are made:
- A trial of suspended sentences be conducted. Suspended sentences would provide the level of consequences, structure and supervision of a Drug Court with less cost.
- All diversion programs be carefully evaluated.
- A single body be given the brief of overseeing diversion in NSW and the resources to do so. This body should be able to work across government departments and with non-government organisations.