The Drug Court of NSW: who gets in, what it costs, what it changes.

The Drug Court of NSW is the most powerful alternative to full-time custody for offenders whose offending is driven by drug dependence. It is not a soft option. The program runs for at least twelve months and routinely longer, the conditions are stricter than parole, and the consequences of breach are real. For the right offender on the right matter, the Drug Court is the difference between a long custodial sentence and a life that no longer ends in the cycle of dependence and offending. This note sets out the eligibility, the referral, the program itself, the sanctions and rewards regime, and the realistic outcomes.

The statutory framework.

The Drug Court of NSW is established under the Drug Court Act 1998 (NSW). Section 5 sets out the eligibility criteria for participation. Section 6 governs referral. Section 7 governs the suspended sentence and the program. The Compulsory Drug Treatment Correctional Centre (under the Crimes (Administration of Sentences) Act 1999) operates as the residential component of the program; participants are sentenced to a suspended term and live at the CDTCC or in approved community accommodation while completing the program.

The court sits in Parramatta and operates a list-based program with a small participant cohort. The Senior Judge of the Drug Court is the program's working head; the court has Local Court and District Court jurisdiction for the matters it deals with.

Eligibility under section 5.

Section 5 of the Drug Court Act sets the eligibility criteria. The five working criteria are:

• The offender must be likely to be sentenced to full-time imprisonment if convicted of the matter as charged. A matter for which a community-based sentence is the likely outcome is not Drug Court material.
• The offender must indicate a plea of guilty to the matter. The Drug Court program is a sentencing alternative; it is not a path to a defended hearing.
• The offender must be a drug-dependent person. The Act defines dependency in terms of a person's reliance on a prohibited drug and the effect on their personal, social or working life. The dependency is the driver the program is designed to address.
• The offender must usually reside in a defined catchment of Local Government Areas. The catchment has expanded over the life of the program; at the date of this note it covers a substantial part of greater Sydney and the lower Hunter. The catchment is updated by regulation; we check the current catchment for any client we are considering for referral.
• The matter must not be a strictly indictable offence involving violence, a sexual offence, or one of the prescribed exclusions for serious drug supply (matters above the indictable quantity attract different scheme exclusions). The Drug Court is for the offending that drug dependence produces (acquisitive offending, low-level supply, fraud, larceny, possess proceeds) rather than for the offending that produces dependence in others.

The eligibility criteria are gate-keeping. A solicitor identifying a client as a potential Drug Court referral works through the five criteria at the first conference. Where the criteria appear to be met, the next step is the referral itself.

The referral process.

Referral is governed by section 6. Any Local Court or District Court that sees an offender appearing to meet the eligibility criteria can refer the offender to the Drug Court. The referral is by telephone in the first instance; the Drug Court Registry conducts a preliminary screen on age and residence; if the screen is passed, the referring court remands the offender into custody at the Compulsory Drug Treatment Correctional Centre for assessment by the Drug Court team (clinical, custodial, judicial).

The assessment runs for around two weeks. During the assessment the offender is in custody. The Drug Court team examines the dependency, the offending pattern, the mental health, the family and social supports, and the realistic prospects of completing the program. At the end of the assessment the offender is brought before the Drug Court for a decision on acceptance.

Refusal of acceptance returns the offender to the referring court to be sentenced in the usual way. Acceptance produces the Drug Court sentence: a term of imprisonment commensurate with the offending, suspended on the offender's entry into the program.

The program.

The program has three phases. Phase 1 is the initiation phase: typically the first three months. The offender lives at the CDTCC or, if approved, in stable community accommodation. Drug testing is conducted three times per week. Counselling, education and vocational engagement begin. The offender attends court fortnightly. Phase 2 is the consolidation phase: the next six to nine months. Drug testing reduces to twice per week. Counselling continues. The offender begins work or study. Court attendance reduces to monthly. Phase 3 is the re-integration phase: typically the final three months. Drug testing reduces to weekly. The offender is in employment or study. Court attendance is monthly.

The phases are not on a fixed timetable. Progress through the phases depends on the offender's compliance with the program conditions. An offender who relapses or breaches a condition moves backwards within a phase or back into a prior phase. The program can run substantially longer than twelve months where progress is uneven.

Conditions vary by participant. Common conditions include abstinence from alcohol and prohibited drugs, residence at an approved address, employment or study engagement, attendance at counselling, drug testing on the prescribed schedule, non-contact with other Drug Court participants outside court, non-association with named individuals (former drug-related contacts), curfew, exclusion from particular places.

Sanctions and rewards.

The Drug Court operates a structured sanctions-and-rewards regime within the program. Rewards include reduction in the frequency of drug testing, reduction in counselling attendance, reduction in court attendance, return of personal effects (phone, vehicle), graduation between phases, and the formal commendation by the judge in open court. Sanctions include increased frequency of court attendance, increased drug testing, additional counselling, return to a prior phase, short custodial sanctions (typically a weekend in custody), and ultimately program termination.

Termination produces the consequences of the original suspended sentence. The offender is taken into full-time custody to serve the balance of the term imposed at sentence, less any time already served in the program. The Drug Court factors the time spent in the program into the calculation of the residual sentence on termination; offenders who have made substantial progress over many months and are terminated late in the program are not returned to serve the full original head sentence.

Graduation produces the opposite consequence. The offender is sentenced in the usual way for the matter, with the program substantially reducing the head sentence and (where the court accepts the rehabilitation as complete) sometimes producing a community-based sentence in place of any further custody.

What it costs.

The Drug Court is publicly funded; participation in the program is not charged to the offender. Counsel and solicitor representation is available through Legal Aid for eligible offenders, or privately funded. The real cost of the program is the participant's time. Twelve months is the minimum and many participants run for sixteen to twenty months. The program is full-time work on the offender's own dependency and life circumstances, with the court as supervisor.

What it changes.

For an offender who completes the program, the change is structural. The dependency is, in many cases, in stable remission. Employment or study has been established. Stable accommodation is in place. The offending pattern that produced the matter in the first place has been disrupted. The sentence at the end of the program is materially less than it would have been at the start. The Drug Court's published outcome data is conservative; the firm's experience is that completion makes the difference, in the right matter, between a long custodial sentence followed by parole and a working life that no longer cycles through custody.

For an offender who does not complete the program, the change is smaller but still real. Termination after substantial progress produces a head sentence shorter than the matter would otherwise have attracted, with the program time counted. Termination early in the program produces something close to the original sentencing exposure.

When the Drug Court is the right path.

Three indicators tend to point toward a Drug Court referral. The offender's offending is driven by an identifiable drug dependency, not by ideology or opportunity. The realistic alternative sentence is full-time custody, not a community-based sentence. The offender has the social and family supports needed to sustain a year of structured work on their dependency. Where those three indicators line up, the Drug Court is usually the right path. Where they do not, the orthodox sentencing options (intensive correction order, community correction order, drug rehabilitation as part of a section 14 mental health diversion under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020) are the better fit.

One last note.

The Drug Court is not for everybody. It is also not soft. The offenders for whom it is the right path are the ones who can use the structure to do real work on the dependency that has cycled them through the system. For those offenders, the program changes the trajectory in a way that an ordinary sentence does not. For their lawyers, identifying the right matter early, securing the referral, and supporting the offender through the program is the work that makes the difference.

This note is general information about the Drug Court of NSW and is not legal advice for any particular case. The eligibility criteria, the catchment, and the program details change. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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