4.3.3 Cost Drug courts are expensive when comparing to the traditional courts. Arie Freiberg illustrates the reason of the high cost of the programme. He expresses that the course requires intensive supervision and treatment services including residential rehabilitation facilities, detoxification services, maintenance programmes, counselling and extensive drug testing(29).

Toni Makkai also admits that the operating system of drug courts has affected a large amount of fund. NSW spent $13.5m over a two year period on its pilot. On the other hand, he argues that drug courts could be much cheaper when taking the whole package. It is highly possible that the schemes are a good long-term allocation of resources: they reduce crime, health problems, the imprisonment and the cost of re-offending(30).

Certain applications have been discussed to improve the cost effectiveness of the NSW Drug Court. Among other things, the court should seek to improve the ability to identify offenders who will benefit from the programme(31). It is questionable whether this suggestion will be complied since there are still some disagreements over the interpretation of participants’ eligibility.

Spending a large sum of money also creates a problem of equity of fairness. The question of fairness has been raised because resources go to courts for the drug dependent. There are people with learning difficulties or having no parents or with some disabilities who also need help from the government budget. Non-drug--dependent offenders could have an equal opportunity to be assigned or awarded with some specialised programmes as well(32). Moreover, the principle of an equal opportunity is examined in the context of culture and race.

4.3.4 Diversity of culture and race Indigenous offenders in Australia were often considered ineligible for the drug court treatment because they nearly always have alcohol related violence on their record and those with a history of violent offending were excluded(33). Creswell and Descheres point out that this may result in the under-representation of Aboriginal offenders who needed more flexible criteria to facilitate access for this group(34).

Language is one of the obstacles especially for those who are not English-native speakers. The NSW drug court evaluation reported that some South East Asian offenders were found to be ineligible for the programme due to language difficulties(35). Even though they are permitted to participate in the programme, they still find some difficulties in communicating to staff during the treatment. Of course, the problem of language will increase the chance of drop-out. Recruiting counselors with the same racial background is said to help provide more opportunities to such offenders. Meanwhile other staff could apply body language such as eye contact, a potent form of non-verbal communication which is supposed to build trust and reassurance of confidentiality among participants(36). It is undeniable that this technique will gain more willingness from the offenders.

4.3.5 Young people At the NSW Drug Summit, Mr. Craig Thompson, Magistrate noted that it is difficult to get young people into treatment programme. The crucial reason is that they do not see themselves as drug dependent. Such programme is not a gentle option. For many offenders even the older ones, the prospect of 6 months in prison is a lot comfortable than at least 12 months of rehabilitation(37). From the survey, it is reported that the younger offenders do not want to ‘sit around and listen to middle aged men talk about their alcohol and drug history’(38). In response to this problem, a drug court for juveniles commenced in July 2001 in Western Sydney. The programmes being tailored to suit the characteristics of younger clients encompass mental health analysis, education and family support(39). Each young offender is allocated a Program Manager and a Support Worker to supervise, monitor and assist their progress.

However, it is human nature that an adolescent person usually tends to be less patient as well as to have fewer endeavours than a matured one. As a result, young culprits have consistently been identified as being at high risk of failure in programme(40). It is unfortunate that they could not complete the assigned programme. This is because youthful offenders are more likely to be rehabilitated than older ones.

4.3.6 Changing roles The drug court takes a team approach despite of the opposing roles among the judge, the defence lawyer, the prosecutor, and the medical staff. The difference between the drug court, and a traditional court are evident in the nature of the proceedings and in the interactions between the parties(41). It tends to divert itself from the adversarial system into the non-adversarial system. For instance, evidence is rarely called by cross-examination and it is not always the lawyers who present information to the court. If there is an unsolved matter, the meeting among staff will be held instead of the appearance in the courtroom(42).

Nevertheless, this has potentially created conflicts of interest for legal aid lawyers(43). The defence lawyer is a part of the team, but at the same time, he or she has to advocate for the best interests of the offender. This inevitably results in the lack of effective inter-agency work. To reduce the inefficacy, all participating staff have to adapt to a broader role than they routinely perform.

4.4 Beyond traditional regime It can be seen that there are several loopholes being hidden in the drug court scheme. As a consequence, other applications are introduced with the object to divert drug-dependent offenders from the criminal justice system into education and treatment programmes. While the diversionary schemes in Australia have been practiced through a centralised system both formally and informally, they differ in their detail.

In NSW, the Cannabis Cautioning Scheme empowers police to caution adult offenders if found using or possessing cannabis but only two cautions are permitted(44). Cannabis has been received a special attention because most of the offences are relating to small quantity being categorising as personal use. In South Australia, using cannabis does not attract convictions but cannabis user would only be fined on the spot to deter the use. It can be argued that when the law does not have capacity to stop the use of drugs, liberalising cannabis might be a better way. The liberal suggestion includes injecting rooms. Not surprisingly, this recommend is highly controversial since the injecting rooms might increase in drug use and drug dealing(45).

Another interesting scheme in NSW is the Magistrates' Early Referral into Treatment (MERIT) scheme. The MERIT programme is a pre-plea system. Potential participants, who are facing drug-related charges, are assessed by a specially trained team of health professionals as to their motivation to undertake drug treatment over a minimum three-month period. The programme is founded on a strong case management model, where the emphasis is on defendants acknowledging the severity of their drug abuse and accepting realistic treatment options. Magistrate Jeff Linden, being responsible for the operation of the programme, gave his interview that it is a very successful initiative and there are plans to make it available to other regions(46).

CONCLUSION

It has always been the public expectation that the court should show some consistency in their decision especially when they apply sentencing discretion to criminals. It is believed that those who commit serious crimes should receive high level of punishment such as the imprisonment. However, the punishment is not the only appropriate solution when the offence is related to the drug. This is because the drug offenders are usually the drug dependents at the same time. They do need some kind of treatment to prevent them from re-offending. To maintain the consistency in sending them to a prison does not improve the situation. Therefore, the criminal law is moving towards the notion of rehabilitation basically with the object to provide the drug offenders with a suitable treatment. The drug court law is one of the rehabilitating laws. Nevertheless, there are some disadvantages in the pilot phase requiring further amendment. Meanwhile there are a number of schemes being designed to supplement existing law which would help to divert offenders into treatment programmes.

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(29) Arie Freiberg, "Australian Drug Courts" (2000) 24 Crim LJ 213.
(30) Toni Makkai, "Drug Courts: Issues and Prospects" (1998) 95 Trends and Issues in Crime and Criminal Justice 1.
(31) B Lind, D Weatherburn, S Chen, M Shanahan, E Lancsar, M Hass and Abreu Lourenco, New South Wales Drug Court Evaluation: Cost-Effectiveness (2002). (32) Unknown author, "Drugs" (2000) 29 Hot Topics 1 at 18.
(33) S Taplin, The New South Wales Drug Court Evaluation: A Process Evaluation (2002).
(34) L Creswell and E Descheres, "Minority and non-minority perceptions of drug court program severity and effective" (2001) 31(1) Journal of Drug Issues 259.
(35) S Taplin, The New South Wales Drug Court Evaluation: A Process Evaluation (2002).
(36) J Jerrell and J Wilson, "Ethnic differences in the treatment of dual mental and substance disorders" (1997) 14(2) Journal of Substance Abuse Treatment 133.
(37) Johanna Pheils and Andrew Eckhold, The Drug Court of New South Wales (1999).
(38) Melissa Bull, Just treatment (2003).
(39) David Indermaur and Lynne Roberts, "Drug Courts in Australia: The First Generation" (2003) 15(2) Current Issues in Criminal Justice 136 at 144.
(40) C Spohn, "Drug courts and recidivism: the results of an evaluation using two comparison groups and multiple indicators of recidivism" (2001) 31(1) Journal of Drug Issues 149.
(41) Arie Freiberg, "Australian Drug Courts" (2000) 24 Crim LJ 213 at 234.
(42) Johanna Pheils and Andrew Eckhold, The Drug Court of New South Wales (1999)
(43) R Lawrence and K Freeman, "Design and Implementation of Australia's First Drug Court" (2002) 35(1) The Australian and New Zealand Journal of Criminology 63.
(44) Melissa Bull, Just treatment (2003) at 62.
(45) Unknown author, "Drugs" (2000) 29 Hot Topics 1 at 22.
(46) Jeff Linden, "The MERIT Programme: A Holistic Approach to Drug Offenders" (2001) 13(4) Judicial Officers' Bulletin 25.

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BIBLIOGRAPHY

Alan Dershowitz, Fair and Certain Punishment (1976).
Arie Freiberg, "Australian Drug Courts" (2000) 24 Crim LJ 213.
Arie Freiberg, "Drug Courts" (2002) 27(6) ALJ 282.
B Lind, D Weatherburn, S Chen, M Shanahan, E Lancsar, M Hass and Abreu Lourenco, New South Wales Drug Court Evaluation: Cost-Effectiveness (2002).
Barbara Smith, Robert Davis and Sharon Goretsky, Strategies for courts to cope with the caseload pressures of drug cases (1991).
Bob Debus, "The NSW Sentencing Council" (2003) 15(6) Judicial Officer's Bulletin 45.
C A Suam, F S Scarpitti and C A Bobbins, "Violent offenders in drug court" (2001) 31(1) Journal of Drug Issues 107.
C Spohn, "Drug courts and recidivism: the results of an evaluation using two comparison groups and multiple indicators of recidivism" (2001) 31(1) Journal of Drug Issues 149.
David Indermaur and Lynne Roberts, "Drug Courts in Australia: The First Generation" (2003) 15(2) Current Issues in Criminal Justice 136.
G L Davies and K M Raymond, "Do Current Sentencing Practices Work?" (2000) 24 Crim LJ 236.
Ian Dearden, "Drugs misuse and the injustice of life" (1988) 13(4) Legal Service Bulletin 149.
Ivan Potas and Patrizia Poletti, Sentencing Drug Offenders (1999).
J Jerrell and J Wilson, "Ethnic differences in the treatment of dual mental and substance disorders" (1997) 14(2) Journal of Substance Abuse Treatment 133.
Jeff Linden, "The MERIT Programme: A Holistic Approach to Drug Offenders" (2001) 13(4) Judicial Officers' Bulletin 25.
Johanna Pheils and Andrew Eckhold, The Drug Court of New South Wales (1999).
John Costanzo, "The trial of a new drug sentencing option for Queensland" (2000) Proctor 14.
L Creswell and E Descheres, "Minority and non-minority perceptions of drug court program severity and effective" (2001) 31(1) Journal of Drug Issues 259.
Melissa Bull, Just treatment (2003).
NSW Bureau of Crime Statistics and Research, Drug Crime Prevention and Mitigation: A Literature Review and Research Agenda (2000).
NSW Law Reform Commission, Diversionary Sentencing (2001).
R Lawrence and K Freeman, "Design and Implementation of Australia's First Drug Court" (2002) 35(1) The Australian and New Zealand Journal of Criminology 63.
S Taplin, The New South Wales Drug Court Evaluation: A Process Evaluation (2002).
Toni Makkai, "Drug Courts: Issues and Prospects" (1998) 95 Trends and Issues in Crime and Criminal Justice 1.
Unknown author, "Drugs" (2000) 29 Hot Topics 1.