‘I’m glad my voice was heard this time’ – Supreme Court win confirms the therapeutic approach of the Drug Court

‘At a time when the Drug Court is expanding to regional Victoria, we’re very pleased that the strong focus on a therapeutic regime has been reinforced,’ said Dan Nicholson, Executive Director of Criminal Law.

Our client Kon was placed on a Drug Treatment Order (DTO) in October 2020 after he was found guilty of dishonesty offences, associated with his drug dependance. Like many Drug Court participants who have a long history of addiction, in his first weeks Kon found it hard to comply with some of the tough requirements of his Order. In November Kon was accused of interfering with a urine screening test. Under the Drug Court’s rules, people who are accused of interfering with their urine screens must have their DTO cancelled.

‘We’ve always been concerned by this provision in the framework because there’s nothing in the legislation that says that if you interfere with a urine screen the order has to be cancelled,’ said Louis Robertson, Kon’s lawyer.

During an application to cancel Kon’s DTO, the presiding Magistrate heard from Corrections staff, but cancelled Kon’s order before his barrister could make full submissions contesting the allegation. Kon was ordered to spend 193 days in custody.

Louis said the decision was concerning because it was not unique. ‘One of the great things about the Drug Court is its flexibility which enables a more therapeutic and somewhat less formal relationship between Magistrate and participant, which is really great when things are going well. But when things are going badly we think there can be a tendency for Magistrates to at times act outside the scope of what the legislation enables them to do,’ he said.

Louis and VLA Chambers advocates Amy Brennan, Angie Wong and Michael Reardon pursued an appeal to the Supreme Court. The appeal relied on two grounds: a denial of procedural fairness in the application hearing and a wrongful interpretation of the DTO cancellation test in the Sentencing Act.

The decision from Justice Incerti noted the ‘creation of the Drug Court and the introduction of the DTO regime in many ways represented the crest of a paradigmatic shift in the traditional judicial approach to drug addiction in Victoria’. The judgment found that sending Kon to prison and reactivating the custodial part of the DTO was the severest consequence possible and diminished the primary basis of the Drug Court’s regime ‘…to reduce crime in the community by addressing drug addiction in a rehabilitative, therapeutically-oriented manner’.

She ruled that the Magistrate denied Kon procedural fairness and that he failed to apply the correct test when considering the cancellation application.

‘The Legislature did not intend for such severe consequences and for the diminishing of the primary basis of the regime without the operation of rigorous procedural safeguards’ said Justice Incerti.

Louis said the judgement provides greater protections for Drug Court participants. ‘This is the first Supreme Court appeal in the Drug Court of Victoria’s history, and it provides a guarantee of certain rights for participants, that they should hold at all stages, notwithstanding the flexible nature of the Drug Treatment Order, as well as reaffirming the therapeutic foundations of the court,’ he said.

Kon said he was thrilled with the outcome, ‘I couldn’t be happier, after the miscarriage of justice that took place, to have my day in court and actually win, it means the world to me’ he said.

As he presses on with his rehabilitation in the community and working towards employment, Kon said he had a renewed optimism about the future. ‘I’m glad my voice was heard this time, this time actually being able to say, I didn’t do it, and having representation that had faith in me… it’s changed my attitude to the legal profession,’ he said.

‘This decision will have welcome flow-on effects, particularly in other cases where the court is considering cancelling a DTO,' said Dan. ‘It’s vital that the therapeutic underpinnings of the Drug Court are carried into its expansion into the County Court, Shepparton and Ballarat so that more Victorians can access the benefits of rehabilitation,’ he said.

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Read about the work of our Drug Court team.