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«A Magistrate’s view of the Law and Social Change Hugh Dillon, BA, LL.M (Syd) Magistrate, NSW Local Court 1. The reform of the NSW Magistracy as a ...»

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It will be immediately obvious that most of the time most magistrates are not formally operating according to such principles because it would be inappropriate to do so. The reality is that, except for certain specific types of cases, magistrates tend to slide in and out of such roles, depending on the cases before them. Sentencing is frequently an exercise that involves therapeutic or problem-oriented approaches but the bulk of magisterial work is the management of an adversarial process designed to adjudicate disputes of one sort or another rather than to solve problems per se.

Nevertheless, I suggest that policy-makers have come increasingly to perceive the potential for channelling various client groups into therapeutic or problem-solving processes via magistrate’s courts. It is no secret that a large number of persons coming before courts charged with relatively minor offences are mentally ill or suffering from psychiatric or psychological conditions which can and probably ought be treated. A court, of itself, is unable to do much but if it becomes a portal to other services it can play a critical role in addressing various problems suffered by individuals.

Individual casework in courts is essentially unspectacular and, sadly, in many cases, not highly productive except in terms of harm-minimisation. Nevertheless, when it realised that literally thousands of people move through magistrate’s courts in Australia per annum, it is reasonable to infer that the lives of many are improved as a result of their being referred to services to which they may not previously have had access. Utopia cannot be delivered in this fashion but the harshness of the lives of many can be ameliorated.

The types of people who, it seems to me, are likely to benefit most from problemoriented courts are those who, for one reason or another, both suffer significant social disadvantages and who are amenable to appropriate treatment or rehabilitation programs.

(I use the term “treatment or rehabilitation programs” in the broad sense to include educative programs and counselling, especially those directed to cognitive therapies.) The potential clients for such programs are readily discernible on any list day in a magistrate’s court. People with mental illnesses or mental health issues; people with drug-addiction issues; people with alcohol issues; people with anger-management issues;

people suffering from conditions such as ADHD and ADD; and people living in poverty (often because they suffer from one or more of the above types of problems) make up the large bulk of any recidivist populations seen by magistrates. While it will sometimes be useful to refer a first offender to some sort of therapeutic program, commonsense dictates that the scarce resources be allocated in a more focussed fashion, and that is generally how magistrates approach such questions.

Freiberg has identified a number of issues concerning the operations of problemoriented courts. The first is that such courts must identify the relevant problem(s)22. In fact most “problems” are clusters of problems that manifest themselves in certain types of behaviours. The successful treatment of, for example, drug addiction will almost invariably require, not only detoxification and drug treatment, but a range of social issues, such as housing, employment, family relationships, physical and mental health, as well as legal issues, such as arrest, bail and sentence to be addressed. One of the most critical is the motivation (on a supported basis) of the client.

Freiberg, ibid p21.

Any considered attempt to deal therapeutically with, for example, domestic violence will also, for self-evident reasons, require the “problem” to be attacked on a number of fronts.

The second major issue Freiberg raises is that:

…the problem-oriented paradigm raises some profound questions about the nature and operation of the court process itself. Proactive judging, which requires the presiding officer to act as judge, mentor, supervisor and service broker threatens some of the core judicial values such as impartiality, fairness, certainty and the separation of powers between the judiciary and the executive… Problem-oriented courts also pose significant challenges for prosecution and defence counsel. The ‘team’ approach, which requires co-operation and collaboration, sits uneasily with the traditional notions of the adversary system… Should defence counsel seek the least restrictive alternative open to the court in the light of the gravity of the offence and the background of the offender, or should they seek a disposition, or process, which is in their client’s ‘best interests’, a phrase which conjures issues of paternalism, coercion and role conflict.23 In practice, however, such concerns seem to me to be misplaced. While we have developed specialist problem-oriented courts, such as the Drug Court and Youth Drug Court (part of the NSW Children’s Court), and processes such as Youth Conferencing for restorative justice, magistrates’ courts will, in conjunction with other services, use different techniques to deal with problems. In my experience, magistrates and practitioners, as well as defendants, are easily able to distinguish between the formal, legal processes of adjudication of cases and the consequences which flow from such cases.

What we are observing is not a holus-bolus rejection of traditional notions of procedural justice and separation of powers but the application of different techniques, in a pragmatic fashion, to ameliorate the consequences of crime and other social dysfunctional. It is without question that deterrence alone, sought to be achieved by severity of sentence, is an inadequate solution to most forms of crime, let alone any other social problems. Recidivists, by definition, are not deterred merely by the fear of sentence, especially if their repeat offences flow from drug addiction, mental illness, alcohol abuse and other such factors. The bad old days of parades of prostitutes marching through Central Court of Petty Sessions on Monday mornings paying their 10/- fines brought the law into disrepute as even the crusty old beaks of the Fifties and Sixties well understood.24 Such rituals did nothing to reduce prostitution, raise community standards, eradicate sexually transmitted disease or achieve any other worthy Victorian goals of the Vagrancy Act.

Without giving such philosophical questions any conscious thought, most modern magistrates are capable of applying relatively sophisticated problem-solving techniques to the complex social problems confronting them daily. This is, perhaps, another measure of the advancement of the magistracy to which Chester Porter was referring. Of course, it should go without saying that they can do so only because policy-makers have themselves become more sophisticated in the identification of problems, their possible solutions and the insertion of resources into the court system.

Freiberg, ibid, p23.

See Golder, op cit, p195.

–  –  –

The Circle Sentencing project in Nowra and the MERIT25 programme which is operating in a small number of courts across the State are two particular examples of the problemoriented approach. A more detailed treatment of the Nowra Circle Sentencing pilot project will be given at the Conference by Ms Gail Wallace so I will confine my remarks on it to a short number of points.

Circle Sentencing

Circle sentencing is an approach to problems which have combined to frustrate most attempts by the criminal justice to deal with Aboriginal repeat offenders in a productive way. Engaging Aboriginal people in dealing with members of their own communities who offend repeatedly is part of the attempt to build a bridge between the justice system and Aboriginal people. Circle sentencing is a sophisticated combination of restorative justice, retribution (there are no soft options being exercised here!) and rehabilitation.

The key to it is the creation of a mutually respectful partnership between the magistrate and the Aboriginal leaders who manage the process.

Of course, it is not magical but the project appears so far to have been remarkably successful. To what extent Nowra’s experience can and will translate to other communities is a matter of speculation but, if the appropriate lessons are learned and applied elsewhere in indigenous communities, the signs are good. I do not wish to overstate the case but the Nowra project appears to be one of the most hopeful developments we have yet seen in the NSW criminal justice system for many years.


The MERIT scheme, which was first piloted in Lismore in 2000 and then rolled out to a number of courts, is a joint project of the Local Court, the NSW Health Dept, the NSW Probation & Parole Service and some non-government agencies. It is designed to divert alleged offenders into a short but intensive drug-treatment program at the earliest opportunity once they enter the criminal justice system after arrest. It is not part of a sentencing exercise: the referral may be made by the arresting police or lawyer representing the accused person even before his or her first appearance in court.

Usually, however, the referral is made as a condition of bail by the court, either on the magistrate’s own motion or at the suggestion of a legal aid lawyer or sometimes a police prosecutor.

The program is voluntary and entry into it is not dependent (unlike the NSW Drug Court program) dependent on a plea of guilty being entered. Once an accused person has volunteered to be assessed, the MERIT team seeks to identify the needs and goals of the participant and any risk factors to be considered in relation to that person. The program is generally an intensive 12-week programme, although it may be extended in certain circumstances. In the course of the programme, the MERIT team deals with issues of detoxification, pharmacotherapies (such as methadone, naltrexone and buprenophine), residential rehabilitation and individual or group-based psychological and psychiatric therapies.

The acronym stands for Magistrate Early Referral Into Treatment.

In practice, if a person completes the MERIT programme successfully and is ultimately convicted of the offence alleged, there is a significant discount on sentence. On the other hand, since the programme is voluntary, unsuccessful completion does not (or ought not) result in any stiffening of the sentence that might otherwise have been imposed if the person had never started the programme. If a person breaches a bail condition requiring attendance at the programme by dropping out and does not approach the court promptly to deal with that issue, magistrates will often issue an arrest warrant and will reconsider the question of bail once the accused is brought before the court. On occasions, after consultation with MERIT, a person may be given a second chance if the magistrate is persuaded of the accused’s bona fide intention to seek treatment.

The MERIT programme has been enthusiastically endorsed by the NSW magistracy. In a survey carried out by the Judicial Commission26, there was virtually unanimous support for the programme and the concept of therapeutic justice in relation to drug crime. The wave of support for the programme undoubtedly reflects the frustration magistrates feel in dealing with the large volumes of non-violent drug-related crime with inadequate tools and a sense of relief on the part of magistrates that suitable treatment programmes for drug-dependant accused persons are finally becoming available.

4. Final words

In this paper I have, I hope, identified some reasons why Australian lawyers yearning for reform of, and improvement in, the criminal justice in this country should be heartened.

Overall, however, it has to be admitted that only the most complacent could be entirely happy with the system’s capacity to meet the challenges it faces.

It is a commonplace that, since 1988, when the Liberal Party won office largely on the basis of a forceful Law-and-Order election campaign, what has been called “penal populism” has been a constant theme in NSW politics. The theme is, however, not unique to our State – it is a phenomenon which has swept the Anglophone world.27 Sadly, no matter how rational governments may at times be in practice, such as when they establish programmes like MERIT, there are few if any votes in such approaches.

Notwithstanding the virtually unanimous endorsement of the judiciary for therapeutic justice in relation to some problems, such policies seem rarely to be publicised to the mass media (or if they are the media take little or no interest) but are mainly confined to the delectation of connoisseurs. The dilemma for the honest politician is, no doubt, how to do the rational thing and to escape misrepresentation by the mass media. Sadly, the conclusion most honest politicians seem to have reached is that there is no such thing as a debate on this topic – only the risk of a loud-volume denunciation by ill-informed critics who reserve not only the last word to the themselves but also the volume controls.

Judicial Commission of NSW MERIT: A survey of magistrates, Sydney, 2004.

See, for example, Roberts, JV; Stalans, LR, Indermaur, D & Hough, M Penal Populism and Public Opinino:

Lessons from Five Countries Oxford UP, New York 2003; Hogg, R & Brown, D Rethinking Law and Order Pluto Press, Sydney 1998. See also, Weatherburn, D “Law and Order Blues” (2002) 35 ANZJ Criminology 127-144 for a different slant on the same problem. (That paper should also be read with the two accompanying articles debating Weatherburn’s arguments: Indemaur, D; Brown, D; Egger, S; Hogg, R “Shadow Boxing with an Imaginary Enemy – A Response to ‘Law and Order Blues’” (2002) 35 ANZJ Criminology 145-158 and Weatherburn ‘“Shadow Boxing with an Imaginary Enemy”’: A Rejoinder” (2002) 35 ANZJ Criminology 159-164.) To my unscholarly observation there has been virtually no publicity given to the fact that approximately one-third of persons remanded in custody suffer mental illness. People in the criminal justice system know this but it is not a matter of common knowledge that gaols are, to a significant degree, required to serve as psychiatric wards and drugdetoxification centres. With the best will in the world, it is difficult to see how the most enlightened correctional regime could be adequate to meet such a test.

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