Has our approach to drugs gone to pot?


Professor Elena Marchetti:

So, tonight's seminar – and it's part of our sentencing seminar series – is called, I love the title, ‘Has our approach to drugs gone to pot’? Bit of a controversial title but I think also a really good title. So, it raises a number of issues and it will provoke discussion about sentencing issues surrounding drug related crime.

We have assembled two content experts who are out the front there and I'll introduce them in a moment, but they will consider the criminal justice system's response to drug offending, this type of offending. Drug related crime is actually placing quite a lot of pressure on Queensland's criminal justice system, but not only in Queensland, actually across the country and in particular on our courts. It's reflected if you, I have got a copy of it in my laptop bag, I printed them out to show you. If you've had a look on our website, we've got a couple of Sentencing Spotlights1. One focuses on the higher courts and the, I guess, sentencing trends for the District Courts and Supreme Court in this state, as well as a Sentencing Spotlight on our lower courts which is our Magistrates Court.

So, both those Spotlight's show that drugs are interwoven with the many other types of criminal behaviour that the courts deal with. They're very much linked with other types of offending. By way of example, the Spotlights, particularly the one on the higher courts, which was released in August, reveals that illicit drug offences represent the most common offence category dealt with by the higher courts. I don't know if that surprises anyone, but maybe it shouldn't.

Over the council's 12-year data period, the percentage share of illicit drug offences for the higher courts which deal with the most serious drug charges consequently, increased from approximately 14% to 41% of most serious offences mentioned or sentenced, sorry. Alongside this, the Magistrate's Court Spotlight reveals that the rising trajectory of drug offences is happening across the state. Possessing illicit drugs and possessing drug utensils were respectfully the fifth and sixth most common offences across the data period, but by the end of that period possessing illicit drugs had become the most common offence overall. So, it's becoming quite an important issue for our courts.

In terms of most serious offences that were sentenced over the data period, possessing illicit drugs ranked third. I can tell you that the first two were… drink-driving ranked first and offensive behaviour was second, that's in the Magistrate's Court. From 2010 to 2017, the proportion of drug offences dealt with in the Magistrate's Courts increased by 70%. That's obviously a significant number when you consider overall that the Magistrate's Courts now deal with more than 200,000 defendants on nearly 400,000 charges every year.

Sentencing Spotlights also provide some interesting additional characteristics about the people who were sentenced and also the types of offences and their links with other offences. For example, if we look at the offence combinations, in the Magistrate's Court, almost half of the court appearances involved more than one drug offence. In the higher courts, three quarters of drug offences involved more than one drug offence. Additionally, the resource implications of this increase extends beyond the courts, of course. So, the Queensland Director of Public Prosecutions annual report last year, noted drug offending recorded the largest increase of offence type referred to that agency. The director noted that this causes particular issues because drug offence investigations have overtime become increasingly sophisticated. They almost inevitably result in very large and complex briefs of evidence for consideration, preparation and prosecution. Often, they result in a significant impost on staffing resources when compared with briefs that are prepared for other types of offending.

The impact of illicit drugs as well as alcohol, on individuals, families and the broader community is something that the courts see every single day. However, the impacts are much broader than just the criminal justice system. The consequences flow into the health education and child protection systems; they affect real people and their families and communities.

The flow on effects of drug and alcohol offending are hard to quantify basically. In 2015, the Department of Justice and Attorney General commissioned a review into developing a best practice evidence-based model to address drug and alcohol offending. Now, the review examined the issues underpinning offending including drug and alcohol misuse and provided a series of recommendations to improve Queensland's response to drug offending or drug related crime. The reintroduction of diversionary court programs such as the drug and alcohol court, this year, represents a new approach to traditional sentencing practices. It provides an opportunity for the criminal justice system to respond to and directly address drug and alcohol misuse and dependency that contributes to offending behaviour.

Referral to the drug and alcohol court and the use of drug and alcohol treatment orders, as a sentencing option, facilitates offender rehabilitation by providing a judicially supervised integrated treatment regime. While drug and alcohol harm can be difficult to quantify, it's also difficult to assess the social and economic benefits that diversionary courts deliver.

So, we have two experts here this evening to talk about these issues. Up at the table over here we've got Magistrate Annette Hennessy and Associate Professor but soon to be Professor, Melissa Bull, I hope I can say that? It has been…

Associate Professor Melissa Bull:

[off microphone] I’ve been appointed so…

Professor Elena Marchetti:

Yeah exactly, and I knew it was public knowledge, So, can I... No, I guess I can't. They're leaders in the field and possibly they're known to many of you here.

Our first speaker is Magistrate Hennessy, and I'll give you a little bit of an introduction about before you get up to speak. Now, I've known Magistrate Hennessy for quite a long time. She's a very respected member of the magistracy in this state and has done numerous things. Well, first of all, she was appointed at a very young age, I must say, as a magistrate in November 1999. One of the youngest wasn’t it?

Magistrate Hennessy:

Tina was the youngest, I was the…

Professor Elena Marchetti:

Right. Yeah. She served in Rockhampton in Maroochydore before she moved to Brisbane. Her honour has presided over a number of high-profile matters, including criminal hearings and coronial inquests. She introduced the Murri Court in Rockhampton in 2003 for adults and then for children in 2005. She's developed the specialist domestic violence list in 2006 and partnered in the domestic violence pilot Breaking the Cycle from 2009. She has long held administrative roles in the regional management of courts and has a keen interest in stakeholder engagement in indigenous sentencing, domestic violence, women's and children's issues and therapeutic court processes.

She commenced her role as magistrate for the Queensland drug and alcohol court in Brisbane in August last year. The court started operating in January this year and she now, I guess, helps people with drug and alcohol related offences overcome their criminal behaviour with supervised rehabilitation through the way that she presides over that court. So, please make Magistrate Hennessy welcome and thank you.

Magistrate Hennessy:

Thank you. Good afternoon. Can I add my acknowledgement of the traditional custodians to Elena's acknowledgement previously before we start, and I'd also like to thank Ruth Butler from Courts Innovation Program at Department of Justice for her contribution to the presentation that I’ve prepared for this afternoon. It's nice to see so many of the drug court team here and I think just about every aspect of the team is represented. So, thank you for coming. Also, I acknowledge the esteemed Chair of the Sentencing Advisory Council who was my old appeal boss anyway in Maroochydore, and also some very senior people from Queensland Health. Thank you for coming.

All right. As Elena said, I'm a magistrate in Queensland and have been around for a little while. Nice to be back in Brisbane, which is where I grew up and studied, et cetera. Queensland Drug and Alcohol Court commenced operation on 29th of January and the relevant legislation is found in Part 8A of the Penalties and Sentences Act for those that are interested, it starts at section 151, and it provides for the making and administering of drug and alcohol treatment orders which we just call Treatment Orders. So, if you see TO in the presentation, that's what that's referring to.

The treatment orders are effectively a suspended sentence with conditions, and the conditions are both the monitoring and rehabilitation and treatment side of the program. As you can see there, we target individuals who are severely dependent on drugs and they are assessed under the DSM-5 in relation to severe substance use disorder and they also have a substantial risk of re-offending. So, the high risk, high needs offenders, usually the people who would virtually automatically otherwise go to prison.

I just put a little stat in there because I'm sure most of us that are involved in the law are aware but 65% of all of those imprisoned and 51% of those placed on probation as at 2016 also have a high risk of problematic drug use. So, we're dealing with the hard case cohort. All of the teams involved in Queensland Drug and Alcohol Court which involves QPS police prosecutors, Legal Aid lawyers, Queensland Health, Corrective Services and I'll go through their roles shortly, and the registry team are all co-located on level 4 at Brisbane Magistrate's Court and everything happens there. Treatment, case management, drug testing and the court appearances are currently held in the Murri Court, which is court 32 on level 7.

So, why drug courts? I won't read through all of this because you're able to read them as you go and if you're interested in the slides, I'm sure that can be provided to you, but these are basically the reasons why drug courts seem to work. As you might know, they've been around in Australia for at least 15 years in one iteration or another, and certainly much longer in the United States. They're quite well tried and tested and our model is based on the best practice principles and the 10 key components from the United States models.

Basically, the aim of the drug court is to facilitate rehabilitation of the offender through judicial supervision, integrated treatment regime, which is focused on the underlying issues of offending. Primarily, that's drugs and alcohol, but we also look at pretty much everything that the offender is facing. The most immediate need usually is accommodation because often they’re either transient or homeless or in custody, so accommodation needs usually come first in the list. General health stabilisation is also a fairly early focus. Then we try and get into the drug and alcohol treatment once there's that initial stabilisation period, but the health team is also looking at issues around mental health and mental health treatment, whether or not participants are compliant with that. Then further down the track, we're looking at reintegration issues such as employment training, reunification with families, et cetera.

It's a fairly wide ranging program and it's been found in studies that people who don't even complete the program, in fact, that might only be involved in a drug court program for two to three months still do come away with benefits, particularly in relation to any personal gains that they've made, but it seems to have a big impact on future treatment and a person's ability or willingness to engage in future health treatment. So, completion or graduation is not really the only measure of success.

These are the best practice principles from the United States which underlie all drug courts. As you can see, most of these are based around therapeutic jurisprudence, that there's an integration of treatment services, non-adversarial approach, early identification, a continuum of treatment and rehabilitation services, monitoring both through testing, case management and judicial monitoring and then inbuilt evaluations, training and support for the team and strong partnerships with community organisations.

The types of offending that we're dealing with, eligible offences are defined as any offences that are able to be dealt with summarily whether or not indictable, excluding sexual offences and that's our only exclusion. These are the usual types of offences that we deal with. Some are drug offences, but everything has to be related. The offending has to be related to drug and alcohol use. Whether they're under the influence at the time, whether they're using the offending to support or fund their drug use. So, those are the typical offences.

One writer I might just add to that is that the violent offences are actually the ones that are most problematic for us to manage, and we do assess people on the basis of potential risk to the community given that this is a term of imprisonment that's served in the community. Also, we're careful about thinking about the safety of our staff and we're also assessing domestic violence risk even if the person's not before the court on domestic violence charges. So, if there's an existing domestic violence risk that is too great to manage on the Treatment Order then they won’t be suitable for the order.

These are the stats for the top 10 offences taken recently. Possession of dangerous drugs, if it's a bit little to read is the fourth line down. So, drug related or drug offences were 54 out of a total of 401. So, you can see that that's about 12% of the overall. We're certainly not primarily focused on drug offending.

These are the two assessment processes. The first is eligibility screening, which happens immediately after the person’s referred from whatever arrest court they're adjourned from and it's very much just a criteria basis. As you can see there’s the health criteria. They can’t be serving a term of imprisonment subject to parole or a cancelled parole order, but we will adjourn matters for a short period of time if they're on parole but their parole period is ending soon.

They need to reside in the Brisbane Magistrates Court district which includes the suburban divisions of Sandgate, Holland Park, Wynnum and – what's this other one? – Richlands, but that's pretty wide-ranging, it’s sort of almost to Ipswich and we cut off at Bald Hills and Sandgate at the north.

As you can see, you can’t be charged with a sexual offence. We've got an extended jurisdiction of up to four years imprisonment and Magistrates Court jurisdiction for criminal matters is three years. That does help us. We have had a few who've been sentenced to three years, three and a half years imprisonment already. So, that extended jurisdiction has come in handy and they have to have pleaded guilty or intend to plead guilty.

From a suitability point of view, this is a very comprehensive assessment including health assessment, substance use disorder severity, clinical suitability for treatment and what treatment options are available and appropriate. Criminogenic risk that Queensland Corrective Services (QCS) assess and it includes all of those matters there. As I said, previous history of violence, domestic and family violence risk, whether or not they're charged with those offences before the court, and also cultural issues which are addressed through our cultural liaison officer who I’ll talk about shortly.

The structure of the treatment order is in two parts. The first part is the period of imprisonment which is suspended for a minimum of two years, but the period of suspension needs to be at least as long as the period of imprisonment. So, if they're sentenced to three and a half years imprisonment, it’s suspended for three and a half years. That period of time can be adjusted as imprisonment goes on, particularly if they're successful it can be reduced. The main impact about revocation of the order which leads to re-sentence is that it doesn't place the participant at risk of a longer term of imprisonment. That's a fairly key component of therapeutic jurisprudential approach, is that the person's at no greater risk of harm from a legal point of view after engaging in voluntary rehabilitation.

The rehabilitation part has the same core conditions as probation and parole, but includes court monitoring requirement, treatment for substance use disorder, including residential rehabilitation if needed, and we have two residential facilities online at the moment. Case management and referral for treatment programs and the most common of those is the men's behaviour change program that QCS run or that they've contracted out to Brisbane domestic violence service. Testing for drug and alcohol use, including randoms and after-hours and court monitoring of compliance and progress.

The rehabilitation part of the program looks like this. Hopefully you can read that. So, basically the first phase is three to six months, which deals with stabilisation. As I said, of immediate health needs, assessment in case planning, alcohol and other drug treatment, weekly case management, weekly alcohol testing, which is a minimum of three urine tests a week and a minimum of one breath test a week, and call monitoring, which is once a week in the early stages. The goals include reducing drug use, ceasing offending, stabilising the living situation, and honest and open communication with the team.

Phase two moves on a little bit into maintaining abstinence, being crime free, keeping accommodation stable and promoting positive social relationships and looking at general health and wellbeing improvement, that's 3 to 12 months. Phase three is the reintegration stage of three to six months where on top of what's already gone on looking at maintenance of all of those things, moving into education, training and employment and being discharged from the program with some aftercare involved with a continued care plan which is developed with the offender.

So, the parts of the program and the roles of each team, Queensland Health are responsible for the alcohol and drug treatment, and you can see there that there are quite a number of areas that that is addressed through. What isn't there although, I guess, it's subsumed by another heading, is looking at mental health and general health as well. You can see there that the aftercare contact with the participant happens for three months after graduation. That's usually done by phone on a regular basis and then if there's any needs, they can be re-engaged with Queensland Health to try and keep that positive progress happening.

The treatment is underpinned by a continuum of care model. The research shows that an extended period of treatment is the most effective for long lasting success and that's why the suspension period is a minimum of two years. So, the treatment is obviously individualised, but it does provide levels of step up and step-down care. In fact, the whole program fairly much works on that basis that if there's an increased need, everything ramps up a bit, if things are stabilising, we can ramp it down. That applies across case management, court monitoring, and also in varying degrees through treatment.

Anybody, I'm sure all of you who've dealt with people who have this issue, it is very up and down and there are lots of step forwards and step backs to varying degrees as you go along, it's very rarely a steady rise. Corrective Services are responsible for case management at delegation from the magistrate. As you can see there, they maintain frequent contact. They refer to other programs, they're responsible for drug and alcohol testing and compliance monitoring. They run two programs just about to start the Making Changes program which addresses criminogenic thinking and all of the issues around re-offending and why that might happen.

The resilience programs are also a program that they run later on in phase two around managing emotions, building resilience and basically those personal control issues. They also provide intensive support with the assistance of Anglicare which is ASQ and Department of Housing actually set up a program which isn't funded by us to assist us, that ASQ are the tendered service provider for, to provide an avenue into housing beyond QCS having to access what hostels might have a room for a night or a week or a month. That program is being very heavily used by the participants at present.

Judicial monitoring, obviously, involves the magistrate. In the early stages, the first phase, it's every week, phase two it goes to fortnightly, phase three it goes to monthly, but it can be stepped up or stepped down depending on the progress of the participant. Behaviour change is the focus of the Treatment Order in general and that's also the focus of judicial monitoring. So, consequences are imposed by the magistrate either to encourage positive behaviour change, to motivate behaviour change or to send a message that compliance with the program conditions is required.

This slide would make any judicial officer in the room a little bit queasy usually because it relates to developing a therapeutic alliance with the participant. It’s actually… I've done a lot of different specialised courts over the years and this is by far the most intensive in relation to the personal contact had with defendants. Excuse me, I’ll just keep my glasses on my face.

I said to somebody the other day, it's actually quite impacting because generally in court, you're used to hearing people's terribly sad tragic stories and seeing the impact that that's had on their lives and their offending and the community and people around them. We sentence them or deal with the trial and move on to the next one, but in this scenario, I hear the story in graphic detail and then every week for the first six months and on a regular basis for two years, I'm sitting down across the bar table with them talking about their life and how they're going on the program and what their problems are.

So, it really is quite different from a judicial point of view, but I think it's incredibly important, especially from the point of view of enabling the participant to have a say in what's going on with them, to take some of that control back around what's happening day to day for them, to have input into what should happen for them in the future, set their own goals and to be able to take responsibility for themselves in having to explain, in open court, various things to the magistrate and others. Which I think once they get used to the different style of things, they're really responding to.

We've got some fellows who are late 30s, early 40s who have been in jail more often than not in their adult life. Sometimes this is the longest period of time they've been out of jail. A lot of times, it's the longest period of time they haven't used even if that’s only for two or three weeks. So, getting them to trust that process takes a while, but once they do they really respond to it.

The cultural side of things. One of the issues with the previous incarnation of the drug court was the difficulty in engaging Aboriginal and Torres Strait Islander people, luckily, in this iteration of drug court in Queensland, we were provided with a Cultural Liaison Officer (CLO) position which is an AO5. It's a dedicated position for an indigenous person, Rhona James-French is the CLO and her input into the program has been completely invaluable. Not just from a development point of view, but you can see there that's just a really, really broad brush of what Rhona does.

The main thing is breaking down the barriers between the participant and the drug court team and the whole process because there's years of distrust, there's years of institutionalisation and everything else that goes with that, as well as all the underlying trauma that led to that in the first place. So, having that assistance from a cultural person is really important. Rhona is also a person of very high level of cultural knowledge, so she provides advice to the review team. She assists participants and team members with communication and I think there's been a couple of incidents where Rhona has stepped in and saved an elevation of a situation. On one occasion even with ambulance officers who came to attend to the participant which would have usually ended up in charges.

She also encourages participation in cultural events and activities, not just for the participants, but also for the staff and provides cultural awareness training for our team as well. We've had pretty good referrals in relation to Aboriginal and Torres Strait Islander people. It's running at about 30% pretty consistently, and our retention rate in relation to our indigenous participants is consistently running a bit higher than the overall retention rate. So, we're pretty happy with that progress so far.

At the moment, as at today, in fact, we have had 97 referrals. There are 29 people on Treatment Orders, there are 23 people waiting in the assessment phases, and we are managing them, most of them on a weekly basis as well if they're not in custody. We've had three revocations of orders and there are currently two warrants outstanding, and one person who's likely to be revoked once matters are prepared. So, we're starting to get really busy. This is an order that the participants or the offender has to consent to, so it's the same as a community-based order in that sense.

So, it's not mandated treatment in the sense that they're being told they have to do it, and some participants have actually, or offenders have actually put their hand up before we get to the stage of sentence and said, "No, I don't think I really want to do this," and that's fine. They go back to normal arrest court, there's no prejudice to them at all.

So, that's a bit of a snapshot around how it works, and why it should work, and the sort of benefits... I haven't focused on the benefits really, because they're more policy issues, which isn't appropriate for a judicial officer to comment on, but there are obviously a lot of potential cost benefits, but the intangible benefits are enormous in relation to the Improvement in a person's health in their interaction with their family and support network, and in not offending. So, you can imagine the potential on costs from that.

So that's really what I wanted to tell you. We do have evaluation built-in, which will occur at periods of time I'm not completely aware of, but it's already ramping up. We've got our own computer system on top of the Department of Justice system, so that we can record a lot of, more rich data in relation to basically everything that's happening with these participants. There's lots more I could tell you, but I think that gives you a general idea about how we're working, and how we're tracking at the moment. We're funded for up to 125 participants. It's one team. It's just in Brisbane magistrates court, and I've got no idea how we're going to manage 125 people on orders at once, but I'm sure we'll work that out as we go along.

These are the contact details. Anybody's welcome to come and visit the office on level 4, if you're interested to have a look at the treatment rooms, and just have a chat to people. We sit in Court 32 at two o'clock on Tuesdays and Thursdays if anybody wants to come and sit in court and have a look. There's the email and phone number for the office and the court's website has all of the fact sheets and the forms that we use in the process. So, if you're in need of forms, or you want to download some fact sheets, that's where you can find them. Thank you.

Professor Elena Marchetti:

Thank you. Thank you so much, Magistrate Hennessy for that really insightful look at what it means to take a therapeutic approach when sentencing people with drug or alcohol issues, rather than treating it as simply a criminal justice issue. And we'll leave questions till the end, I think, so that people can address them to either Melissa or Magistrate Hennessy, or Professor Bull.

So now we'll introduce associate professor / professor, Melissa Bull. Melissa is an academic at the School of Criminology and Criminal Justice at Griffith University. She's the leader still I think, of the Justice Law and Society program, research program at the Griffith Criminology Institute, and her main areas of research include drug regulation, policing diversity, and sentencing and punishment. She has conducted research in the alcohol and drug field for more than 20 years. Her work has had a significant impact on policy and practice nationally and internationally.

Associate Professor Bull's current projects include research focusing on harm reduction, policing and drug law reform in China and Australia, sentencing and drug supply in Australia, as well as a project with colleagues from the University of Queensland that explores new ways of thinking about policing in Pacific Island States. She's currently working on projects that focus on harm reduction and drug law reform in China and Australia, as well as a project with colleagues from the University of Queensland exploring new ways of thinking about policing in the Pacific Islands.

While at Griffith University, she has held a number of research leadership roles including Deputy Director, and then the Director of the Australian Research Council Centre of Excellence in Policing and Security. In October, she takes up the position as a Professor in the School of Justice at the Queensland University of Technology. Very warm congratulations on that position, and could you please join me in welcoming Associate Professor Bull.

Associate Professor Melissa Bull:

So, thank you everyone. Like Elena and Magistrate Hennessy, I want to acknowledge the traditional custodians of the land that we meet on. I'd also like to acknowledge esteemed attendees and thank everybody who's taken their time to come along this afternoon. I want to thank QSAC and the organisers for inviting me to come along. This is a terrific opportunity for me to talk about my research, but also a wonderful opportunity to hear about how the Drug Court is going. I've actually had quite a long interest in the Drug Court and been researching in that area since the beginning of the Queensland Drug Court, so it was really great to hear that.

But I guess with my presentation there’s going to be a little bit of a change of pace. I want to talk about some recent research that I've been doing on how we sentence drug supply cases across Australia, and I've been doing this work with a colleague, Professor Ross Coomber, and another colleague Leah Moyle, and we were lucky enough to be funded by an Australian Institute of Criminology research grant, so I'd like to acknowledge that too.

But, I guess the background to this research was that we started noticing in research that there was a lot of talk about different types of supply. In fact, Ross and Leah do quite a lot of this work, and they largely focus on drug users, talking to them about their practices, and there's been an identification of what's called social supply, but also minimally commercial supply, and as I was thinking about this, I sort of went back into the deep recesses of my brain of many years of sitting in courts.

I funded my undergraduate degree working in drug and alcohol, and a lot of that was spent sitting in magistrate courts in Canberra, and then over the years since I've been in Queensland... When I was looking at this research, one of the Australian papers, which was focused on marijuana users and social supply said, “It was really important that we tell judges about this, so they know how to adjust their sentencing.” And I thought to myself, I think that they already do this. It might be worth doing a bit of research here. And so, I started talking about it and saying, "Well, we could look at sentencing remarks," and a lot of people found reasons why we couldn't do that, but I was insistent, and that's what I'm going to talk about today.

So, most of you would know that when it comes to law enforcement and criminal justice responses aimed at drugs, that they're really governed at quite a high level through international treaties, and I'm going to start with that, because we sometimes lose sight of that, and the impact that it has on what we do. And the key one is the Single Convention on Narcotic Drugs, which most countries in the world including Australia, have signed and ratified, and it says, "Serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty…"

But it goes on, "In appropriate cases of a minor nature, there is potential for alternative to conviction or punishment," and what this suggests is that there is an international drive or interest in ideas about proportionality and consistency in sentencing in drug supply matters, or drug matters. That's actually quite important because one of the problems as you'll see, is that there are some challenges around proportionality and consistency in sentencing, and it's probably a little bit to do with how we try to unpack matters of supply.

There's the view that there should be a distinction between more and less serious types of offending behaviour, and penalties should reflect that, and when we think about distinguishing between these more or less serious types of offending behaviours, it usually comes down to a conceptual distinction, or quite often, a conceptual distinction between those who supply drugs and those who are primarily users.

This was made clear to me recently. You heard from my bio, I've been doing a lot of work in Asia, in China, but recently, I was in Penang and in Malaysia, and was quite intrigued by the keynote that was at the end of the conference and the day that I was presenting on, that talked about how Malaysia and other Asian countries needed to legalise drugs, which is very interesting. I was a little bit concerned because the word legalise was used a bit loosely, and the other suggestion was that all we had to do was distinguish between users and traffickers, the users and the Mr. Bigs. And actually, what I'm going to argue today, and I think probably what many of you might know is that it's not that simple.

So, when we look at research, even though we try to distinguish between these two groups, the research actually shows us that those people who come to the attention of law enforcement agencies even in supply cases, are often primarily users themselves. And so, the big challenge here is, how do we distinguish between these two groups?

In Australia and a few other countries – but I was surprised to learn not that many – we rely on the identification of thresholds, and these thresholds talk to different substances and their indicator of supply, and supply is seen as a more serious offence than simple possession. But there's been a bunch of research recently, and the paper that most comes to mind is some work done by Caitlin Hughes and some colleagues in Sydney, take a closer look at thresholds, and they concluded that while Australian drug users are unlikely to exceed trafficable thresholds under normal circumstances, but when they're purchasing at the higher end of the scale, those more marginalised users, many do actually exceed thresholds.

They do quite a detailed analysis and there's reports again that are available through the Australian Institute of Criminology, and this work suggests that it's a mistake to assume that thresholds are able to effectively filter users from traffickers. And Hughes and her colleagues go so far as to say that they're not fit for purpose, so that's a pretty heavy statement, and they talk about how heavy users are likely to be negatively impacted by them. But some of this other work that I started off talking about, made me and my colleagues think that there are other groups too, who might be vulnerable to disproportionate sentencing.

So, what is this other work, and who are these other groups? These are the groups also involved in the types of supply that can be separated off from profit-motivated commercial supply and works being done in England, Ross Coomber and his colleague – I’ve forgotten his name – Turnbull, I’ll just say – and Coomber and Moyle, and in Australia there's a bunch of papers, Nicholas Lenton, Grigg, Scott and Barratt; and internationally, Ross Coomber recently published a comparative paper that crossed 11 different countries, and they described non-commercial suppliers who distribute drugs to non-strangers. So, they distribute drugs to friends and acquaintances for little or no profit, and they talk about this practice as social supply. So, this is part of what I'm going to talk about today.

But some other work that has been done in the UK has also identified a wider range of low-level, not-for-profit supply offences that goes beyond this idea of social supply, which we might think about as recreational supply, and speaks to those sort of addicted drug-dependent user-dealers that I think Caitlyn Hughes and her colleagues were suggesting were negatively impacted by thresholds.

So, I guess what we wanted to do was think about those groups. We also wanted to address the research that had been done in Australia. So that was the work by Lenton and his colleagues, in that they identified patterns of social supply amongst users, that suggested this type of... and they suggested this type of supply should be brought to the attention of judges. So, I told you, we decided that perhaps judges already knew about this. I had a quick look through LexisNexis and the sentencing remarks that I could find.

In fact, what sparked my interest in this is, as part of one of my courses, I got students to do a content analysis of judgments made in the District Court in Adelaide, and I just randomly picked 10 cases that came up, and two of those ten cases. So, it was just happened to be when I was designing the course, I would have said was social supply, so that actually peaked my interest. So, based on these observations in relation to drug-related offending behaviour, we thought that it was very likely the judiciary already knew this type of variation, and we developed this project.

And so, our objective was to produce a detailed empirical account of the way Australian courts currently respond to social supply, and minimally commercial supply, these categories I've been talking about, explore how judicial officers understand these different categories, including social supply, minimally commercial supply, and the impact that this has on their sentencing practices, and in terms of expressions of proportionality in drug supply and trafficking cases in Australian courts.

We also were keen to identify opportunities for the development of more consistent and proportionate sentencing practices, and criminal justice responses to social supply and minimally commercial supply, and we're interested to do this in a conversation with judicial officers. So, you'll see that part of what we wanted to do was interview judicial officers, something that's proved to be relatively difficult, but perhaps not such a surprise, but there are some willing candidates that I'm very, very grateful to. And I guess partly too, in light of what Elena was saying about the resources and the amount of time, and the number of people who are before courts for drug matters, we were wondering if it was worth considering how social supply, minimally commercial supply, might be included, or could they be included in a reconsideration or reconfiguration of our current program of drug diversion.

I've talked to police, and I've talked to others who work in the criminal justice system about this, and it seemed to us it was something worth considering. So, we developed this project which consists of two phases which I have up here. Really, today, I'm going to talk about phase one, which was an analysis of the sentencing remark. So, we collected 551 sets of sentencing remarks from across all jurisdictions. There were cases heard in District, Supreme and Supreme Court of Appeal, probably a bit more than half were in Court of Appeal, and then we constructed this enormous spreadsheet.

It was a nightmare that really broke things down into types of drugs, characteristics of offenders, like a demography and taxonomy of supply, and through that, we were actually able to identify cases where that could be systematically coded and systematically identified as social supply and minimally commercial supply, and then we used a software package called NVivo to explore the sentences, how judges differentiated between different types of supply, whether social supply and minimally commercial supply differed within and across jurisdiction.

So, that's really what I'm going to talk about today. Phase two is interviewing judges, so what did we find? Our spreadsheet categories included jurisdiction, court, drug type, offence category, characteristics of offending behaviour. I mean, as Magistrate Hennessy said, it's not strictly limited to drug offending, characteristics of the offender, and sentencing outcome. I'm not going to talk about all of that here, because we would be here till next week. There was a lot. But I'll just run you through some things that are not that surprising.

The picture of offenders that emerged was a fairly... I've done research in this area for a long time, and it was sort of what I'd anticipated. The average age of our sample was 37. This is slightly older than the average age of those held custody for the same period of time, which according to the Australian Bureau of Statistics was about 34. It was interesting that the oldest offender was 87, and he was in the Northern Territory. He received an 80-month sentence suspended after three for... as he was courier for cannabis. There were three in their 70s, a Tasmanian man who was selling cannabis to friends for pretty much no profit; a woman who sold cannabis that belonged to her daughter who passed away, so it was sort of a one-off thing; and then there was a father, a 70-something year old father who in conjunction with his daughter was found guilty of cultivating 1,542 plants in Victoria.

In terms of gender, again, it was a fairly familiar picture, just over 11% of our sample were women, and 88% men. It's slightly more women than you see in the prison population, and this might be because the ABS data showed for the period that we were looking at, that illicit drug offences were the most common offences that female prisoners were held for. But this is where it gets interesting for me. So, this chart is about the relationship between the offender and drugs, and so you can see the purple, when you think about, I don't know if you've ever looked at LexisNexis, but across jurisdictions, it can be quite variable. And so there was a little bit of missing data, but there were probably about 17% of cases… we didn't know, but there was enough in the rest to tell us something.

There were about 17% of cases where people were non-users, but two-thirds of those who were appearing before the courts were users, and of those, three-quarters of them were drug-dependent users. And remember, we were looking at supply and trafficking cases. We actually did a search on trafficking, so these were meant to be serious end of things, and for us, this suggests that there are some challenges that arise in relation to current strategies for differentiating between suppliers or traffickers, and users. But of course, the main thing is, they're not mutually exclusive categories.

So, as I said, the aim of this project was to provide sort of a nuance and an empirical account of what the ways that Australian courts currently respond to what's being referred to as social supply and minimally commercial supply, and to think about or explore how judges understand these different categories, and the impact that this has on their sentencing. The data presented so far is really talked about who the offenders were, and the offences appearing in court.

The next part, I'm just going to talk a little bit more specifically in relation to the cases that can be defined as social supply and minimally commercial supply. When we looked more closely at our data and examined it case by case, we coded each set of sentencing remarks for social supply/minimally commercial supply, and it became evident that judges did acknowledge or at least recognise these different types of behaviour, and by and large, this was reflected in their sentencing, but there were some significant inconsistencies, and I’ll talk about this later.

When we were considering cases involving social supply and how that was coded, it was involving bulk purchase, not-for-profit, or commercial interests, individuals supplying recreational drugs like cannabis or ecstasy, cocaine, hallucinogens. There were some amphetamine type substances. They often said they were doing it to help others out. So, there was an altruistic element to it. It involves sharing or exchange for dinner with friends or acquaintances, perhaps small amount of profit to just cover their own use. Social suppliers weren't drug-dependent. They were very often employed or in education, and they often had very well-established social networks.

So, that coding or that categorization really came from the research that's been done across the world. And then we sort of came up with these typologies. And then we looked to see what could we code our cases according to that. And in relation to these cases, what we found is that courts most often focused on the lack of profit. They also noted that when compared with commercially-oriented trafficking, they were at the very lowest end of the scale, and there was always a connection between the supplier and the receiver; they were known to each other, and this was a mitigating circumstance.

When we talk about these types of cases, they were a relatively small percentage of our cases, and they were distributed across all states except for Victoria. I don't know, it might be something about the sentencing practices in Victoria, which meant that they didn't appear there. Most of them were in relation to cannabis. There are higher numbers noted in Tasmania, Northern Territory, New South Wales. And I must add a caveat here. It was quite hard to get transcripts of sentencing remarks for all the jurisdictions, and so, in states where they weren't available, we contacted them directly, and the courts in the Northern Territory and Tasmania were kind enough, or generous enough to actually supply the data that we needed on a stick and so, it was really in those states that we weren't looking at appeal courts, and that's why we have a large number of them. But certainly, I can't talk about it here because it's beyond the scope of this, but there were distinctive patterns of supply in Tasmania and the Northern Territory, linked to their geography that suggests that there needs to be a closer look there.

But just in terms of social supply, I think it's worth putting out a couple of examples of cases. This is one from the Northern Territory. You can see there was a supply of a small number of ecstasy tablets, two grams of cannabis, and a very small quantity of methamphetamine. It was purchased to supply friends between 31 December and 3 January, so over a festive period.  The offender was employed, he was enrolled in tertiary education, he had no prior record except for that driving offence. The offending was at the low range, but he spent more than three months in custody on remand until granted bail, even though he pled guilty. And during that time, he had a pretty rough time.

And this wasn't the only one, there were other cases, but I guess in New South Wales, I could talk about... There was another case, a similar story; 20 ecstasy tablets, a small amount of cannabis. He was off to a music festival. He said he was going to take two tablets himself, give the balance to friends over the course of the weekend. This guy again, he was a professional, he was well-connected to his community, he wasn't drug-dependent, he had no criminal record at all, he was given a two-year good behaviour bond, but the crown lodged an appeal, so it went to the high court, arguing that this sentence was manifestly inadequate. It was dismissed.

A Queensland case, just in case you thought I was going to leave Queensland out, a 49-year-old business woman convicted of seven counts of supply, which involved giving one or two ecstasy tablets to a friend over a 12-month period, she received a nine-month custodial sentence, and it was suspended on appeal. So, you can see there's a lot of variation here, but there's also quite clearly, some inconsistency in relation to how these are dealt with, and the costs that this brings on, if there are appeals, and a significant number of them.

I actually mentioned, this with another interesting one. The lines can get a bit blurry. This was an unusual case. It came up in the Northern Territory in an indigenous community where there were commercial dealers going in and exploiting the community. There was an indigenous guy who had had leadership roles in the community, and his community came to him and said, look, they were bringing in bad drugs, could he get some good drugs, he wasn't a drug user himself. He went out and did this, he provided a supply to the community for no profit. He charged those who were dealers a bit of extra money, and he gave that money to charity.

Again, he forfeited his Land Cruiser. The only reason he was picked up was, he got pulled over a breath test, and the smell of cannabis in his truck was so strong, that the police thought they should... But, there was this acknowledgement. He was naïve about what he was doing. He actually thought he was helping his community out. So, I'm not saying this is okay, but there's a degree of naivety here that's not captured when we think about thresholds in a bald way, that suggests that we need to be, perhaps, a bit more nuanced.

Okay, I'll move on and talk about minimally commercial supply. It was coded in terms of heavy users of drugs including heroin, methamphetamine, cannabis, cocaine, pharmaceuticals, opioids, benzodiazepines, involved dependent drug users who sell for a small amount of profit, nearly all of which was used to offset the costs of their own drug needs. Users were socially marginalised, often with tragic personal histories and chaotic lives. And their active supply activities were minimally commercialised. They didn't make much money. Addiction, again, it was clear that judges took this into account, often noting addiction as a circumstance of the offender and it carried weight in the sentencing process, although as you'll see in a minute that there was quite a lot of... There's some disagreement about how much weight it should carry or, you know, whether it should be aggravating or mitigating.

There were distinctions between those who were motivated by need rather than greed, or compulsion to support a personal drug habit. There was consistently a recognition of the minimally commercial nature of what they did, and also there was a consideration of the role that people played, often taking into account that people in this circumstance supplied to a small number of known drug dependent people, so it was quite closed, and they sort of helped each other out.

There were justifications in terms of reducing sentences. Sentences were based, often, on the lack of profit, the offender's role, their attendant levels of culpability, particularly when comparing their unsophisticated opportunistic supply activity with a commercially motivated operation. I could tell you some sad stories about those cases, the minimally commercial supply cases, but I suspect that the people in those circumstances look a lot like those people that appear in the drug courts, so I'll leave that for the moment.

Minimally commercial supply cases most commonly involved amphetamine type substances and cannabis. Over half of these were sentenced as trafficking offences but a significant number were sentenced as commercial offences, so that's an important thing to take into consideration. There was a lot of – when we were categorising drugs, we had this category, other, which really spoke to things like over-the-counter drugs, new psycho-active substances and performance enhancing drugs, and these largely appeared in this category as well, so there was a distinctiveness about the distribution.

Just to bring all of this together, because I'm just watching time and I've gone on a little bit. I was trying to think of how to represent what's going on in the courts, so I developed this table which makes it clear that on average, judges do respond to social supply/minimally commercial supplier cases in quantitatively different ways. The mean sentence for all cases was about 54 months, but for minimally commercial supply, those that we coded as minimally commercial supply, it was about 26 months, and for social supply it was about eight months, so you can see this coming down.

There was also meaningful variation between minimum and maximum sentences across supply categories. So, in the social supply cases, we saw, quite often, fines or good behaviour bonds, but also, we saw a sentence of five years, and that was a case in New South Wales where a guy had bought a bunch of ecstasy tablets. He'd gone away to Byron Bay with a bunch of his mates. The judge basically said, "Well, clearly you're supplying your mates but you're not telling me." And so, because he didn't actually, you know... The judge felt he wasn't being honest with him, he received a harsher sentence and it was upheld at appeal as well.

In terms of minimally commercial supply, again, you see variation between a fine of good behaviour and up to a maximum of six years. I mean, there's lots of little stars and caveats there and when Magistrate Hennessy was talking before about drug courts being a suspended sentence, one of the striking features about the Northern Territory and Tasmania was the shortness of the sentences, but also, they were largely wholly suspended. You know, or it was only in the most serious cases that it would be, you know, a partially suspended sentence, you know, three months and then the remainder suspended.

So, it's clear that judges are taking these types of supply into account when they're making their sentences. The factors that influence decision was a discussion of harm, the purity of the drug. You know, if it was more pure there was this idea that it could be diluted and sold more widely. There's actually some research that suggests that often isn't the case as much as we think. Other issues that came up was whether it was at street level, so the harm to members of the community. Sometimes street level meant that it was dealt with less harshly because it was chaotic, disorganised sale to a small group of known people at that level, but alternatively, it could be used to justify a harsher sentence because of the exposure to the rest of the community.

Consideration of the crime that goes on. Again, there's some interesting research – Ross Coomber’s done some work in the UK, and he looked at the harm associated with what he called minimally commercial suppliers and the commercially motivated suppliers, and the crime, in terms of violence and other types of property crime, was much more strongly related with commercially motivated suppliers and there was relatively little of that harm in relation to the minimally commercial supplier, so we need to think a bit more carefully there. Considerations of harm to families, and particularly in relation to indigenous communities, because in the Northern Territory, there's a particular offence since the Intervention about supplying to an indigenous community, so that came up as well.

Other themes were whether supply was repetitive and organised verse chaotic and perhaps opportunistic, how much profit was involved, the offender's role in distribution and there was discussion of deterrence, general and individual. Again, that varied because there seemed to be a lot of disagreement about how deterrence works with a drug dependent person. So, as I mentioned a few times, there have been some discrepancies and inconsistencies and I guess the first one that we noticed was, there was a discernible difference in how different judges understood the relevance of addiction, you know, whether it was a mitigating circumstance or whether it shouldn't be taken into account.

More often than not, appeal judges critiqued the manifest excess of a sentencing case where addiction featured, but there were departures and that when, you know, although addiction should be a consideration, as it has been said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence. Other factors that came into play was in terms of determining whether a supplier was organised or not. Indications of supply, in some cases, whether there was a mobile phone, a tick sheet or evidence of communication between customers was sometimes said to signal organised operation. In other cases, it wasn't, so there was inconsistency there. And, as I said, the influence of general and individual deterrents often was variably understood.

So, just to finish up, I guess what we concluded from this preliminary analysis is that across Australian jurisdictions, sentencing in drug supply or trafficking cases does differentiate between social supply and minimally commercial supply in relation to other types of supply. While this is the case, there is some, and in some instances, quite a lot, of variation in sentencing practices in relation to types of supply across and within jurisdictions. So that's important when we're thinking about those issues of proportionality.

Taking the overall result of this phase of our study into account, we tend to agree with Hughes, that thresholds are not that effective when it comes to trying to differentiate between users and dealers, so maybe we need to have a bit more thought here and, as these authors cautioned, they impact in negative ways on marginalised heavy drug users but, as we've shown, it's also on those involved in social supply as well. So, I'll leave it there. As I said, the next stage is in depth interviews with members of the judiciary to discuss these results and see what they think and get their feedback on their experiences but I'd be interested in your feedback too.

Professor Elena Marchetti:

Thank you so much for that, Melissa. And we do have some time for questions, so anybody…?


I have a question for Melissa. In your research thus far, have you taken into account the differences first of all in the hierarchy of courts and different states, so, for example, in Tasmania, ACT and...?

Associate Professor Melissa Bull:

Northern Territory.


Northern Territory, there's no District Court, there's only Supreme Court.

Associate Professor Melissa Bull:



And also have you taken into account the different jurisdictional difference?

Associate Professor Melissa Bull:



But that might explain some of the anomalies that you pointed out.

Associate Professor Melissa Bull:

Yeah. But most of the... Actually, pretty much all of the cases except for about five were from Supreme Courts, even in Queensland and New South Wales, and Victoria. So, they were all in courts at that higher level, so I guess that sort of helped us, helped us out there.


The District Courts in the states where it now exists would do the majority of sort of sentencing, certainly through trafficking cannabis, and supply of the Schedule 1 Drugs, so it would be worth looking at those as well.

Associate Professor Melissa Bull:

Well, we would have liked to have looked at those but, of course, their transcripts of sentencing remarks weren't available on LexisNexis, so we acknowledge that it's not the perfect design but because we were able to capture 550, so a lot of cases, and the other thing is when we were looking... Probably the majority of the cases we looked at were mandatorily appealed, they usually had a summary of what had happened in the other court, so we were actually able to see the difference between what happened in the different courts as well. And I guess that's partly why I'm very keen, where possible, to talk to judges about their experiences as well.

But, yeah, I guess, the other thing is we were very mindful of the thresholds being different across states as well. I mean, Tasmania has incredibly high thresholds. South Australia and New South Wales and Victoria have very low thresholds, so you can definitely see some variation there.

I mean, I've written a much more detailed report, this is really just a snapshot of that, but it is difficult to tease all of this out. But in terms of these types of behaviours, in terms of social supply and minimally commercial supply, they were consistently seen across the jurisdictions and there was consideration given to it, but, again, like I said, the sentence, there was great variation in the sentence.

Professor Elena Marchetti:

Any other...? Yes.


Magistrate Hennessy, one of the slides talked about immediate sanctions for people not provided orders. What are available, apart from actually going back to jail, or to jail?

Magistrate Hennessy:

They start, basically, with things like written reflections or writing plans in relation to what's happening and how the participant is going to address those issues going forward, and it can include stepping up case management frequency, court monitoring frequency, testing frequency if that's an issue. With alcohol use, we can step up to an alcohol bracelet, a monitoring bracelet, which gives sort of daily reporting back on alcohol levels 24/7, and then we move up. There are a few other things in between but we move up to community work days, which is like community service but it's not actually a Community Service Order.

So, I can order those up to – I think it's up to 40 hours at a time I can order, at one time, and that's sort of almost endless and then up to seven days at a time imprisonment as a sanction. So, individual days or up to seven at a time, and that can be used on a number of occasions. In Victoria, they tend to sort of pretty much start at the community work and imprisonment days from the first week, but they run like a tick sheet, where, you know, this week you did well with that, so you can have a day off court but then you get two community work days, they build the community work up to six days a week. Once they've hit six days, they start on imprisonment days, but you can win days back or get other days imposed as you go along.

So, it's not actually immediate and I think by the time they were serving a seven-day term, they wouldn't remember what on earth they were serving it for, so we're sort of really trying to look at focusing on this behaviour, this is the consequence and you do the community work within two weeks, because that's the shortest period of time the QCS can arrange it. If you're going to do an imprisonment day, you're going straight in the minute I tell you that. So, we're trying to keep it really immediate, because the swift consequence is what encourages the behaviour change.

Professor Elena Marchetti:

Interesting. Any other questions?


Can I ask one more?

Professor Elena Marchetti:

Yeah. I'll let you.


I wanted to ask a question for the best magistrate ever to be in Maroochydore, why did you come to Brisbane? No, my question was, just as a matter of interest, are most of your... What do you call it, clients?

Magistrate Hennessy:

They're offenders until they're on the program and then they become participants.


Participants. Are most of your participants polysubstance abuse drug abusers or do you have alcoholics? Just on their own?

Professor Elena Marchetti

I was going to ask that question.


I was thinking about that bracelet.

Professor Elena Marchetti

Yeah, same.

Magistrate Hennessy:

I did do a breakdown of that. No, we haven't actually used the bracelets yet, other than the staff… [Laughter] And I did as well, but sadly, I don't drink much these days. I was happy to have a drink to see if it registered but…

Professor Elena Marchetti:

And does it?

Magistrate Hennessy:

But, no, we haven't actually got really a cohort of alcoholics, if you like, or particularly only using alcohol. Some of the drug users use alcohol as well, but not necessarily to problematic levels, I think is what we've found so far. Most of the primary drugs being used is methamphetamines but a lot of them are poly-users, either presently or in the past and some of them from a very young age, like early teenage. I think the youngest so far has been 10, started drug use, so...

But it's interesting that once – a couple of the participants who are able to maintain abstinence already, are then saying, "Okay, now I want to give up cigarettes and..." They really get into the what else can I do to improve my health and general situation. But, yeah, a lot of them are quite complex users, so it's a matter of, you know, congratulating people for having your first test that's free of meth when they're using three other things at the same time, so you're sort of trying to grab onto any improvements to try and motivate that positive change and encourage them to keep going.

Professor Elena Marchetti:

Have you found a similar thing to Melissa's research that they've been charged with supply as well?

Magistrate Hennessy:

No. We haven't had many supplies, only, maybe, one or two. But I was just saying to Melissa before we started, that most of the suppliers we deal with in a Magistrate’s Court are in Children's Court.

Professor Elena Marchetti:

Yeah. Right.

Magistrate Hennessy:

Because there's so many circumstances of aggravation that bump it up to…

Professor Elena Marchetti:

The higher courts? Yeah, of course.

Magistrate Hennessy:

That it's really just the pure social suppliers on a very small scale.

Professor Elena Marchetti:


Magistrate Hennessy:

That we would deal with.

Professor Elena Marchetti:

Of course. Yeah.

Magistrate Hennessy:

So, it's not a big offence in our... Ours is more possession, especially possession of cannabis can be a reasonably significant amount and then all of the consequent other charges that flow from the offences that facilitate drug use.

Professor Elena Marchetti:



Sorry, it's just a quick question, Magistrate Hennessy, we hear so much bad news in the criminal justice industry we're all working within. Could you give us a really good positive story?

Magistrate Hennessy:

Oh, look, there are actually quite a few. All of our participants are still in phase one, but we've probably got about four or five who are almost into phase two, so I would have expected within the next month or so they'll be moving into phase two. So that's a bit of a progression for us, but there's one participant who is a lady who has a reasonable criminal history. She came onto the program from custody, so she was clear of drugs at that time. She's managed to maintain that abstinence over a period of months and her family situation is disjointed but is working on reunification.

She's really stabilised very quickly. But, you know, even the little things, like I was saying to Judge Robertson, the really little things that you can just hang something on to say that there's an improvement, and one gentleman had his first week with no street checks by the police in living memory. So he was used to getting street checked nearly every day and he had a week without any police attention. So that might not sound like much, but we all know that obviously the street checks pick up on more things, that people are more visible and offences are detected more, which is a good thing, obviously, but it also can wear somebody down over a period of time about their self-worth, etcetera, without any intent from the police.

But, that was actually quite a big achievement for this guy, that, you know… And some of them have been coming back saying, "Do you realise this is the longest period of time I've ever been out of jail, you know, as an adult?" Or, "This is the longest period that I haven't used." Or, "I've never not used heroin in a week before." All of these sort of things. So, I guess there's complexions of good news stories, from a public point of view they might not sort of appreciate that's such good news, but certainly on an individual level, some of these small, incremental things are what actually do provide that intrinsic motivation for people to keep going and to make more substantial achievements over time.


I hope you're collecting some of the case studies for your evaluation.

Magistrate Hennessy:

Yeah, we're trying to pick up all of those little good news stories as they happen so...

Professor Elena Marchetti:

Is there another question? Hi, Terri.


Thank you very much. That's really interesting presentations. Do you think there's a case for youth drug courts at all?

Magistrate Hennessy:

Yes. I also think there's a case for much more, especially residential services for young people, especially outside of Brisbane. I'm not so familiar with exactly what goes on in Brisbane just yet because I've been in the country for a long time, but I know in Rockhampton, we were just screaming out for services for children.

So, I mean, if drug and alcohol use in relation to children could have the same coverage that CYHMS provides for mental health around the state, then I think we'd be much better off.

Youth drug courts, I think, would be reasonably complex for a whole lot of different reasons, but certainly – I sentenced a young guy today in Children's Court and I said to him... He had been dabbling in ice at 14 and his offending was drug related and so I told him what our usual cohort was in drug court as an adult and what experience those people had had, especially the men, in their adult life and that he needed to try and start getting things under control now because that was probably his worst case scenario whilst he was still breathing.

So, there's certainly – we all deal with children and juveniles in the criminal justice system, that there's a big problem and, as I said, most of our fellows started using as young teenagers as well. So, it's a really big issue. I really don't know exactly what's needed but I know that we need something and for it to be spread out across the state.

Professor Elena Marchetti:

One more, quick.


We've heard a lot about the role of the Drug Court and how, at the moment, it's in a relatively limited reach and so forth, and there's also a number of exclusions as to why people can't actually attend that particular court. Do you have any insights for options for change in the broader community for responding to drug offending? So, if either people are not eligible or those services aren't available in that particular location, given your experience and understanding of the cohort now that you're dealing with, are there any other insights that we could be drawing from into the broader models for the judiciary?

Magistrate Hennessy:

Well, I think generally, in my experience, the earlier the intervention, not just in that particular offence but in the person's offending history, the better. So, in Maroochydore I was involved with the QMERIT program and a couple of the court coordinators are here, and it's a bail-based program that runs for about 26 weeks for any offending. So, you have a public nuisance or a possess utensil and it's drug related, you decide that you want to deal with your drug issue, you can go to the QMERIT program, it's all done in the community through ATODS and it's a much scaled down version from Drug Court, and obviously much shorter, but it's bail-based so it's voluntary, it's pre-sentence and then the sentencing judicial officer can take into account the compliance with that voluntary rehabilitation and that program had some great success stories for the nearly five years I was in Maroochydore.

It's run in Maroochydore and Redcliffe, but I think it's an excellent program and I think it's certainly very portable to other places, and it's obviously a lot less intensive but it's also looking at a different cohort. Pretty much, our cohort for drug court wouldn't fit with QMERIT, but you can deal with people from first offence right through to probably the mid-range of sentencing, when they're starting to potentially look at imprisonment.

But Judge Robertson has told me before that - it's only available in the Magistrates' Court, but if a person whilst they were on bail waiting for higher court matters to be dealt with, that once they were sentenced in the District Court that the judge was able to take into account that they had complied with QMERIT… We have traffickers wanting to do it as well so that they can produce that information to the Supreme Court, to hopefully have a positive impact on the sentencing. And I think certainly in meritorious cases, it actually does warrant a fairly significant mitigation of penalty. It certainly did in the Magistrates' Court when we were sentencing them after they'd done the program.

So, I think probably a suite of programs would be the best option, because then you've got flexibility around resourcing, around what fits with the size of the community, what community organisations or government services are available in that community, and you've got more flexibility around timeframes, bail-based post sentence, the more the better, really. There was residential rehabilitation available as part of that program as well, which also worked very well.  I just think the wider range, and this is not a policy, this is just from my experience of what works…

Professor Elena Marchetti:

It is being recorded.

Magistrate Hennessy:

…from a court point of view, is the wider range of tools that you have available to try and assist people to engage in rehabilitation in a way that benefits not just them but the community at large, you know, the better off we'll be in the future.

Professor Elena Marchetti:

Thank you. I might... I'm conscious of the time, so I might bring this to a close. I think it's really provided us with a really good understanding that drug offending is not just, you know, about people who are just bad and are out to engage in making a lot of money if they're selling it to other people. It's not the case all the time and so we need to start thinking a bit more broadly about how to address, you know, drug offending behaviour and hopefully create some change.

1 The Sentencing Spotlights on offence and sentencing trends mentioned in this recording and transcript have been replaced with more recent data. Please refer to our interactive Sentencing Trends webpage.