Drug diversion in South Australia is of 2 types: those offered by the Police and those offered by the Courts.
Police options include Cannabis Expiation Notices and the Police Drug Diversion Initiative.
Court options for drug diversion in South Australia include the Treatment Intervention Programs for those with drug and mental health problems, the Port Adelaide Nunga Court Treatment Program, and the South Australian Drug Court.
Police can issue a Cannabis Expiation Notice to someone who commits a ‘simple’ cannabis offence. This includes offences of:
- possessing up to 20 grams of cannabis resin or up to 100 grams of cannabis
- smoking cannabis in private
- possessing equipment related to drug use (for example, pipes, bongs), or
- cultivating a cannabis plant.
The expiation notice may be given to a person directly or by post. If the offence is expiated (that is, the fee is paid within 28 days), the matter is finalised. Payment of an expiation fee is not admission of guilt. If the notice isn’t paid, a summons to go to court is issued.
Under the Controlled Substances Act 1984, the Police Drug Diversion Initiative (PDDI) aims to divert people aged 16 years or over who commit minor drug offences into the health system instead of the justice system.
Drug and Alcohol Services SA is responsible for co-ordinating the program which is provided in partnership with Anglicare SA. It is only available to those charged with drug offences. It is not available for other offences even where drug use is a part of the offending.
This form of drug diversion in South Australia offers early intervention strategies for those who have been caught with a small amount of illegal drugs intended for personal use (except cannabis). The police must refer allegations of simple possession to this service and the referral operates as a stay of proceedings.
A prosecution can’t proceed in court unless:
- the referral is terminated by the service
- the person fails to comply
- the person doesn’t admit the allegations, or
- the person doesn’t want to participate in the program.
After assessment for this type of drug diversion in South Australia, a person enters into an undertaking (similar to a bond) for up to 6 months. During that time, they participate in treatment programs and counselling courses.
Participation is not an admission of guilt. If the undertaking is successfully completed, they can’t be prosecuted for the offence.
There is no limit to how many times a person can be diverted for simple possession offences but after diversion on more than three occasions they will be seen by a panel of assessors.
Participants are linked to community treatment services. They are given some time to comply with the program; however, continuing non-compliance may result in the program being terminated.
The Youth Court program is for those who may not be eligible for referral to a family conference because of the nature of their offending. The program is divided into 2 phases. The length of each phase is a guide only and is adjusted to suit the individual.
Phase 1 usually lasts for 2 months and entails:
- simple bail
- court reviews every 2 weeks
- contact with a Program Supervisor on either a weekly or fortnightly basis
- twice weekly random drug testing
- referral to drug treatment services which may include individual or group therapy.
Phase 2 usually lasts for 4 months and entails:
- monthly court reviews
- weekly random drug testing
- therapeutic intervention as in Phase 1
- rehabilitation and recovery plan is revised and updated
- contact with a Program Supervisor is reduced to fortnightly unless more support is required.
This means that the participant has:
- not had fresh charges laid against them
- attended the treatment sessions and engaged in the process, and
- shown that they are willing and able to stop or significantly reduce their substance use.
Participation in the program must be reflected in any sentence imposed on the offender; however, failing to complete the program will not mean any additional penalty.
The court programs for drug diversion in South Australia are generally quite similar, although they do differ in some respects.
The Treatment Intervention Program is for individuals who have both a mental disorder and a drug problem, while the Youth Court Treatment Intervention Program is aimed at those under 18 years who suffer from dependency on drugs or other substances and/or a mental impairment. Both aim to help the offender to stop or significantly reduce drug use, to reduce re-offending and to improve mental and physical health and social functioning.
The offender will undergo an eligibility assessment and, if they are more suited to Drug Court, this is recommended to the Magistrate.
To be eligible, a person must:
- be charged with a minor indictable or summary offence, with a link between the offending behaviour and the mental impairment and/or substance dependence
- the offence must have some relationship to their drug use (but not necessarily be a drug offence) and/or
- the offence is related to their mental impairment. This is defined as a mental illness, intellectual disability, acquired brain injury, a personality disorder, or a neurological disorder such as dementia.
Persons who have a problem with illegal drugs who are appearing in the Port Adelaide Nunga Court are given the opportunity of deferring their sentencing for 6 months while they participate in drug diversion in South Australia. It is a voluntary program under the Bail Act 1985.
If they agree to address their drug issues they are:
- linked with therapy and relapse prevention groups
- required to submit to twice-weekly random drug testing, and
- given individual counselling if its appropriate.
This article reflects the state of the law as at 7 March 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.