Drug and Alcohol Treatment Orders – Recent Decision of the Court of Appeal

Drug and Alcohol Treatment Orders (DATO’s) are a relatively new sentencing option in the county court. The drug court has operated in the Magistrates’ Court in Victoria since 2002 but it wasn’t until 2022 that it was first piloted in the County Court.

When the pilot was announced the Judge in charge of the drug court said ‘Drug courts are evidence based, they protect the community, they save lives, they save money and they work’.

These comments reflect the experience of the Drug court not in the Magistrates’ Court in Victoria but in other jurisdictions as well.

The Court of Appeal recently handed down a judgement regarding a decision of the County Court to cancel a DATO and ‘activate’ the custodial portion of the sentence. Before dealing with the significance of the decision and the comments made by the court it is important to set out some aspects of the legislative regime under which DATOs are imposed and administered.

The Sentencing Act 1991 sections 18X – 18ZT create DATOs as a sentencing option and govern the circumstances in which they may be imposed, administered, supervised, varied and cancelled. The statute provides for ongoing assessment of the progress of an offender placed on such an order. These provisions are important to the workability of the order in circumstances where it is a pre-condition to the imposition of a DATO that the offender is dependent on drugs or alcohol and their dependency contributed to the commission of the offence(s).[1]

DATOs are a somewhat unusual order structurally. There are two separate portions – a treatment and supervision part and a custodial part. The court imposes a period of imprisonment for the offences to which the offender has pleaded guilty, but the offender is not required to serve that sentence unless it is ‘activated’. Simultaneously the court imposes an order setting out the treatment and supervision component which includes core conditions plus a range of other conditions decided upon by the judge. If this portion of the order is complied with satisfactorily (including no further criminal offending) the order will be completed.

This is a simplification of the process – there are steps along the way that include case conferences, monitoring of progress, reports to the court and other measures to support the offender while supervising their progress and compliance.

Consistent with the comments made by the Judge in charge of the Drug court upon commencement of the pilot scheme the approach is evidence based – inherent within which is an acknowledgement that rehabilitation from drug or alcohol dependency is not linear, that some level of regression is to be expected on the way to successful rehabilitation and that rehabilitation of a dependent offender serves to protect the community.

These themes seem to have played a role in the Court of Appeal’s approach to the appeal in Jurd[2] in which the court overturned a decision of the County Court Drug Court to cancel a DATO and activate a sentence of imprisonment. Part of the Court of Appeal’s reasoning focused on the absence of proper reasons expressed by the Judge for the decision which was made.?

There is little broader significance to this for the purpose of assessing the DATO scheme. What is, however more important is the Court of Appeal’s analysis of the provisions of the Sentencing Act and the seeming acknowledgement that compliance with DATOs is bound to be variable and this should not necessarily result in their cancellation, nor imprisonment of the offender.

A key aspect of this was the reliance by the prosecution and ultimately the County Court judge on section 18ZP(c) of the Sentencing Act which provides that a DATO may be cancelled if the offender is ‘unwilling’ to continue to comply.? The Court of Appeal found that there is a distinction between ‘unwillingness’ to comply and an inability to comply. That is – an offender may be willing to continue on the order but due to their dependency problems have ongoing difficulties with doing so to a high standard.

The Court acknowledged that there of course will be circumstances where a failure of compliance, even in the face of a stated willingness to continue, may be a basis to find an offender is in fact unwilling to comply, however they made it clear that failure does not of itself equate to unwillingness.

While there are other avenues by which an order may be cancelled if an otherwise ‘willing’ offender fails to comply (for example if it is clear that the continuation of the treatment and supervision part of the order is not going to achieve one or more of its purposes – which of course may arise where an offender simply doesn’t engage) it is important to take a nuanced approach to DATOs, understanding that offenders subject to them necessarily have difficulties they are seeking to overcome.

Dependency connotes a compulsion, rather than a choice to continue to take drugs or alcohol. The decision in Jurd and the general tenor of the Drug Court regime is an important acknowledgement of this, one which can hopefully lead to a broader range of evidence based sentencing practices within the jurisdiction – where the focus is on the aims spoken on at the launch of the County Court Drug Court – protecting the community, saving lives saving money and just working.

[1] Sentencing Act 1991 section 18Z

[2] Jurg v The King [2024] VSCA 224