Essential VCE Legal Studies Units 1 & 2 Additional Resources

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					Essential VCE Legal Studies
Units 1 & 2
Additional Resources

‘Problem-solving Courts’:
A Magistrate’s Perspective
By Jelena Popovic, Deputy Chief Magistrate,
Magistrates' Court Of Victoria


Introduction
In May 2004, the Attorney-General for Victoria, Rob Hulls, launched his vision for
the provision of justice in State of Victoria for the next 10 years.1
        The Justice Statement aims to address:
        • ‘Initiatives to modernise the justice system and ensure it remains flexible
            and responsive to change’, and
        • ‘Strong measures to safeguard the rights of those who are most
            vulnerable’.
        The Magistrates’ Court of Victoria has been a ‘problem-solving’ court for
many years. The recognition that ‘problem-solving’ is part of the Magistrates' Court
of Victoria’s ‘core business’ is welcomed. The Justice Statement is a move towards a
'whole of government' approach to many of the social issues that impact on the
justice system. The Justice Statement provides an excellent opportunity for courts,
government departments and agencies, as well as non-government agencies, to
broaden their knowledge of each other’s functions and duties and work more
collaboratively and efficiently together.
        In relation to problem-solving approaches, the Justice Statement had this to
say:

         The problem-solving court is the most common model that has been developed to
         address defendants with specific needs. Problem-solving courts have evolved in
         response to particular issues faced by the courts, such as repeat offending caused by
         drug dependency or mental illness.
                 Their key characteristics are that:


1
 ‘New Directions for the Victorian Justice System 2004–2014’ Attorney-General's Justice Statement,
May 2004 published by Corporate Communications Department of Justice. The Justice Statement is
available on the Department of Justice website at <www.justice.vic.gov.au>.




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 1
                    •   They seek to address the causative factors associated with the
                        offending behaviour and thereby reduce recidivism.
                    •   They make active use of judicial authority to change the behaviour of
                        litigants. Judicial officers usually remain engaged in the case to
                        monitor progress and compliance with orders, and dispense sanctions
                        and rewards for breaches and achievements.
                    •   They adopt a collaborative approach, drawing on the skills and
                        resources of different agencies to address the problem.
                    •   The dynamics of the courtroom are changed from the traditional,
                        adversarial process of assertion and denial to the sharing of
                        information and plans to address the defendant’s behaviour. For this
                        reason, these courts are often only accessible to those who are willing
                        to plead guilty. Judicial officers in problem-solving courts engage in
                        dialogue with the offender and other members of the interdisciplinary
                        court team. The offender is part of the interaction rather than an
                        observer speaking through their lawyer.2

      Further, the Justice Statement made the following remarks about the role of
the Magistrates' Court of Victoria in relation to problem-solving approaches:

           The Magistrates' Court has shown great leadership in establishing and supporting
           these and other initiatives. Its efforts have been the first wave of a new approach to
           addressing disadvantage in the criminal courts.3

         Principally, the approach taken by the Magistrates' Court of Victoria is that
individuals who present to the court with a need that is apparent to their lawyer,
court staff, the police or magistrate, for some form of intervention by the court do
not fit into a ‘one size fits all’ model.
         From our experience, interventions can occur at various times in a person’s
life, as a response to a vast array of behaviours, and at various times through the
criminal justice or court process.
         There appears to be a perception that the court ‘interferes’ or ‘meddles’ in
areas which ought not be the court’s concern — this perception, in my view, arises
from a lack of insight into the workings of the court.
         The problem-solving approaches are not restricted to persons who are part of
the criminal justice system; increasingly, the Crimes Family Violence jurisdiction
and debt recovery phases need to respond to persons presenting with issues which
can’t be ignored.
         A full description of the Court's Support Services is located on the
Magistrates' Court of Victoria website at <www.magistratescourt.vic.gov.au>.

What is the magistrates’ role?
In order to understand why the Magistrates’ Court of Victoria has taken a proactive
role in problem-solving approaches, it is necessary to understand the role of the
magistrate in criminal proceedings.
        The magistrate has different roles at different parts of the court process.
        If we take, for example, a criminal case, magistrates might be required to
perform a variety of different decision-making functions at different stages:
2
    Above, p. 60.
3
    Above, p. 61.




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 2
         1 Bail: In arriving at a decision as to whether a person should be granted
         bail or not, a magistrate must make a determination of risk factors: for
         example, is the applicant for bail a risk of either failing to appear on bail or
         committing further offences whilst on bail? Are there any conditions of bail
         that can reduce these risk factors?

             The determination of bail applications is one where ‘problem-solving'
         approaches are quite important. For example, on frequent occasions,
         assessments need to be undertaken of mental health issues, or assessment of
         drug issues (such as if a person is heavily substance effected or withdrawing,
         they could be a risk of committing offences to obtain the drugs they need to
         cater to their dependency), whether the applicant for bail is homeless and if
         so, what assistance with housing can be obtained.

             At the bail stage, magistrates are dealing with persons who have not been
         convicted of any offences and who generally have a presumption of bail. The
         magistrate is required to balance the ‘liberty of the subject’ against the risk
         factors mentioned above.

         2 Determination of guilt: generally, this involves an analysis of the
         pertinent facts and law and problem-solving approaches are not necessary.

         3 Sentencing: sentencing is the other main area of the Magistrates' Court's
         criminal jurisdiction where problem-solving has an important role.
         Sentencing involves a magistrate in the application of sentencing principles
         enunciated in the Sentencing Act, previously-determined cases and legal
         texts. A magistrate is bound to sentence in accordance with the sentencing
         options legislated for in the Sentencing Act.

Principles of sentencing
The broad principles of sentencing can be summarised as follows:
   • punishment
   • denunciation
   • parity
   • deterring the offender from further offending
   • deterring others from offending
   • rehabilitation.

Considerations applied in sentencing
These are set out in the Sentencing Act as well, and augmented by case law and
written about in textbooks. A magistrate, in sentencing, accords weight to these
factors as they determine appropriate in each individual instance:
    • age
    • previous good character
    • previous convictions, if any
    • charges
    • seriousness of offending




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 3
    •    circumstances of offending
    •    risk of future offending (recidivism)
    •    prevention of recidivism
    •    diversion from custody
    •    factors individual to offender (such as mental health issues)
    •    potential for rehabilitation
    •    consideration of what type of rehabilitation may be appropriate.

Sentencing options
These are set out in the Sentencing Act but summarised as follows from least serious
to most serious:
    • Discharge/dismissal: a charge might be proven, but can be dismissed if it is
       not appropriate to impose a sentencing disposition — it may be minor, or it
       may be minor in the scheme of things, or a person may already have been
       punished enough (such as a person who has shoplifted food but has been in
       the cells for the weekend due to outstanding warrants).
    • Adjourned undertaking without conviction: this can be for up to five years.
       Conditions as well as a contribution to the court fund can be imposed. This
       person can be charged with breach of undertaking and re-sentenced if the
       charge is found proven. This option is most used with mentally-impaired
       offenders to attempt to achieve better compliance with treatment regimes.
    • Adjourned undertaking with conviction: this can be for up to five years.
       Conditions, as well as a contribution to the court fund, can be imposed. A
       person can be charged with breach of undertaking and re-sentenced if the
       charge is found proven. This option is most used with mentally-impaired
       offenders to attempt to achieve better compliance with treatment regimes.
    • Fine without conviction: individual Acts set out maximum fines.
    • Fine with conviction: individual Acts set out maximum fines.
    • Community based order without conviction: can be imposed for up to 24
       months. Supervision by a community corrections officer may be a component
       if necessary. Community work can be ordered. Other conditions can be
       imposed, such as drug and alcohol treatment and testing, psychiatric or
       psychological treatment, anger management, sex offender programs,
       cognitive skills and so on. The consequences of breach of conditions or by re-
       offending; charges with breach and dealt with by court.
    • Community based order with conviction: can be imposed for up to 24
       months. Supervision by a community corrections officer may be a component
       if necessary. Community work can be ordered. Other conditions can be
       imposed, such as drug and alcohol treatment and testing, psychiatric or
       psychological treatment, anger management, sex offender programs,
       cognitive skills and so on. Consequences of breach of conditions or by re-
       offending; charges with breach and dealt with by court.
    • Suspended sentence: can be imposed by the magistrate for up to 24 months
       with an operational period up to 12 months — conditions are not able to be
       attached. If breached, sentence may be restored in full or part.
    • Intensive corrections order: can be imposed for up to 12 months. Supervision
       by a community corrections officer mandatory. Twelve hours of compulsory




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 4
         programs per week — this may include community work, and programs such
         as drug and alcohol treatment and testing, psychiatric or psychological
         treatment, anger management, sex offender programs, cognitive skills and so
         on. Consequences of breach of conditions or by re-offending; charges with
         breach and dealt with by court — generally, any unexpired potion will need
         to be served on prison.
    •    Youth detention: incarceration of offenders aged between 17 and 21 years in
         a youth training facility.
    •    Drug treatment order: specific to Drug Court — order made after a term of
         imprisonment fixed to a maximum of 24 months.
    •    Home detention: can be made after a prison term is ordered and a favourable
         assessment has been undertaken to a maximum of 12 months.
    •    Imprisonment: generally considered to be the sentence of last resort (another
         reason why bail determinations are so important). A magistrate has the power
         to imprison for up to two years on a single charge (three years under the
         Drugs Act) to a maximum of five years. Maximum terms of imprisonment for
         specific offences are set out in the legislation applicable to the individual
         offences. If a sentence of between 12 and 24 months is imposed, the
         sentencer may consider fixing a non-parole period of not less than six months
         before the expiration of the sentence. For sentences in excess of 24 months or
         over, the sentencer must consider setting a non-parole period.

When/why does problem-solving intervention occur?
There are several times during the court process when interventions can occur, with
different responses coming into play to suit the needs of the individual.

Crisis response
There are times when the response needs to be a ‘crisis management’ response, such
as at arrest or the remand hearing.
        An example from my experience is this: a 21-year-old male student with no
prior history committed vicious and violent attacks in the street on elderly people. He
was on remand, due to the fact that the attacks occurred on successive days, he
having been released on bail on the first day and rearrested after the second day’s
attacks. The court’s psychiatric liaison nurse intervened. It was soon established that
the student had developed schizophrenia and appropriate referrals and treatment
were organised.
        Other examples are the common occurrence of the presentation of
substantially drug-effected or withdrawing defendants.
        I have often referred to the common example of mentally unwell homeless
persons sleeping in other people’s cars and being charged with car theft. Or people
who are not good with organising themselves (often homeless or transient) who
consistently fail to appear on bail and who have been denied bail to ensure that their
cases are dealt with.
        Much of the problem-solving we as magistrates are engaged in occurs at this
early point. For example, many people are brought into custody for displaying anti-
social behaviour that the community can’t deal with, the police are called, the police




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 5
can generally find some offence or other to charge them with to hold them in custody
— and something has to be done at the court to manage the crisis.

Short-term response
This occurs generally at the pre-sentence stage — sometimes after a plea of guilty
has been entered but the magistrate has not yet determined the final outcome.
Another example applies to defendants charged with serious indictable offences that
will be determined by the County Court. The more resources put into this group of
defendants at an early stage, such as the bail hearing stage, the better the possible
outcome at the end of the proceedings — for example, juvenile offenders linked in to
Juvenile Justice have improved chances of receiving a non-custodial order or
detention in a youth training facility as opposed to an adult prison.

Longer-term response
After the plea has been made, a magistrate may wish to consider a problem-solving
approach to the disposition of the matter to reduce the prospect of further offending
by the defendant. This process may or may not involve a sentencing disposition that
is administered by Corrections Victoria (such as a community based disposition such
as a Community Based Order or Intensive Corrections Order), or Forensicare
(hospital orders). The court support services will be called upon to advice, liaise with
other agencies and plan at this stage but will cease involvement upon sentencing
(with the exception of Drug Treatment Orders).

What do magistrates consider necessary from court services/problem-
solving courts?
    •    timeliness
    •    appropriate specialist response specific to the needs of the individual and
         which conforms with the applicable legislative requirement
    •    practical and achievable recommendations
    •    accountability to the court
    •    independent, fearless advice
    •    high standard reports (not necessarily lengthy)
    •    there is also a necessity for some material aid from time to time — this is
         most often provided by the Salvation Army in the form of accommodation,
         food vouchers, travel cards and phone cards. The bail co-ordination also
         provides some essential material aid in terms of paying for accommodation
         and pharmacotherapy.



Conclusion
Often during the course of their work, magistrates take the view that the causes of a
defendant's criminal behaviour can start to be addressed at court because that is
where they either become apparent or the defendant might most benefit from a
therapeutic intervention. It has been the experience of magistrates that many
defendants respond well to a therapeutic intervention by the court because the full




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 6
extent of the trouble they are in is made apparent. Sometimes, complying with a
court order structured around a problem-solving approach can make the difference
between a term of imprisonment and a non-custodial sentence.
       Unfortunately, magistrates are often told by defendants or the families of
defendants: ‘We couldn’t get the help we needed until we came to the court.’




Cambridge Essential VCE Legal Studies Units 1& 2 Additional Resources: A Magistrate’s Perspective   Page 7

				
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