ࡱ> fheq nbjbjt+t+ AAj]8(\>2"$pd))Z  t8 PILCH AND SIR ZELMAN COWEN CENTRE FOR LEGAL EDUCATION HOMELESSNESS AND THE LAW: A VIEW FROM THE BENCH Jelena Popovic, Deputy Chief Magistrate Magistrates Court of Victoria Tuesday 15th October, 2002 INTRODUCTION I have been a magistrate in Victoria for 13 years and prior to that was a solicitor working predominantly with legally aided, inner suburban clients. During 1998, the Magistrates Court of Victoria, commenced a pilot program for drug dependant persons on bail. Although I had been a magistrate for some 9 years prior to the program commencing and thought that I was aware of the social issues besetting our community, it was not until the CREDIT clinicians educated me that I gained a full appreciation of the extent and effect of homelessness among defendants. The penny finally dropped. Homelessness was the root cause of much of the offending before the courts; and the reality was there was little hope of changing offending and harmful behaviour until a homelessness person was living in appropriate accommodation. At the risk of repetition (The Age Newspaper having already quoted me twice in relation to this particular point), it is not unusual for homeless persons to be charged with car theft for breaking into cars to sleep and for shop theft of food. WHATS SO IMPORTANT ABOUT HAVING A HOME VIS--VIS COURTS? I have to come clean and confess that my sentencing practices lean heavily towards rehabilitation of offenders the main impetus for this approach being that rehabilitation leads to less crime being committed which leads to a safer community. I have come to the conclusion that rehabilitation in the criminal justice sense or life-style change cannot occur unless and until a person has appropriate accommodation. The day to day life of a homeless person is often chaotic, unstructured, and can be taken up largely with where the next meal or bed is coming from. The priorities are getting drugs (for drug dependant people) food, getting money and bed. The chaos can really only start to be addressed when the bed and food priorities have been sorted out. Those of us in the community who are housed, well-fed and have an income have no comprehension of the importance of having those things. Persons without an address, let alone bank account, are unable to access social security benefits. Mentally ill persons without an address are unable to access or be assigned a local area mental health facility. It is difficult to be linked in to any services, including drug treatment services, if you are homeless. PRISON I dont describe the situation of homeless prisoners as a revolving door, I describe it as a human conveyor belt with a sharp turn at one end the release end bends quickly back into the incarceration straight. It is depressing and exasperating to sentence defendants who have committed offences soon after release from prison, but it is a frequent occurrence. Anecdotally, the offenders who are most likely to fit into this category are the homeless back in the same circumstances which caused them to offend prior to their last prison term. Another issue arising from imprisonment is that single defendants in rental housing who receive a term of imprisonment generally lose their accommodation and their belongings whilst incarcerated. This puts them in a situation which is worse than when they were offending and were punished by imprisonment. The Bridging the Gap program and housing officers in prisons have been introduced to overcome the lack or loss of accommodation at the post-release stage. The problems of lack of housing stock, lack of supported accommodation and general lack of resources result in many prisoners missing out. The services are generally not available for prisoners with on short sentences. PAROLE Parole is not granted until a suitable parole plan is provided. The parole plan must include suitable accommodation. It would be trite to detail the difficulties marginalised prisoners have in supplying an address. Until recently when the Bridging the Gap program and housing officers were introduced, there was little in place to assist these people in providing an address. At one meeting of the Adult Parole Board earlier this year, of the 17 prisoners whose earliest release were coming up, only 7 had accommodation and had order made ordering their release on parole. In relation to the other 10, the decision to fix a parole date had to be deferred until accommodation was found. The most difficult prisoners to accommodate are the intellectually disabled and mentally ill. The Australian Community Support Organisation has provided extraordinary assistance to parolees over many years but is always stretched to bursting and simply cannot offer support and housing to all who need it. The bottom line is that often, homeless people remain in gaol longer than people with homes to go to. COMMUNITY BASED DISPOSITIONS Under the Sentencing Act, offenders can be placed on two types of rehabilitative orders in lieu of imprisonment. These are Community Based Orders and Intensive Correction Orders. These orders can include supervision, drug, psychiatric, psychological, and anger management programs, personal development programs such as literacy and education and community work. The community work component involves introductory courses into first aid and occupational health and safety. Obviously, homeless persons are not generally placed on these orders as due to their homeless state, they are unable to attend a Community Corrections Centre or program locations. Once again, their homeless status robs them of programs available to others. DILEMMA FOR MAGISTRATES A dilemma for magistrates is whether to release homeless persons from prison or whether to defer release until accommodation is in place. I experienced this dilemma last year. A psychiatrically ill homeless was arrested by police and charged with car theft among and possession of amphetamine after he was found asleep in a car. Due to his homeless state, he had lost touch with his local area mental health clinic, had ceased medication and his illness he had become psychotic. He was denied bail on the basis that he was an unacceptable risk of committing further offences. While in custody, he was examined and treated by a psychiatrist, had his medication stabilised and had improved considerably. The matter came fore me. The offender pleaded guilty to the offences with which he had been charged. He had been in custody at that time for a period of three weeks. While he was in custody, no-one addressed the issue of accommodation or psychiatric treatment in the community. In my view, the offender had served a more than an adequate time in custody as punishment for the offences. My dilemma was this: Should I release the offender, whose done his time, into the community with no supports, no accommodation and no follow-up for his psychiatric illness? OR Should I keep the offender, who has done his time, in prison while supports are put in place, accommodation is arranged and he is linked up with psychiatric services? Somewhat against my judicial principles, I reluctantly decided to remand the defendant for three days. The Bail Co-ordinator at the Court then assisted in obtaining accommodation for him. Upon accommodation being confirmed, the psychiatric liaison nurse attached to the Court was able to make appointments for him with the Local Area Mental Health clinic appropriate to where he would be residing. The accommodation arranged for him was supported accommodation assistance was to be provided to him to obtain an emergency Centrelink payment and to be placed on Centrelink payments again. The first weeks rental was met by the fund available to the Bail co-ordinator. Food vouchers were obtained, and he was provided with travel cards and phone cards. DRUG COURT You will no doubt be aware of the Drug Court Pilot at Dandenong. During the planning for the Drug Court, recognition was given to the importance of accommodation as the foundation for change. The early design of the program included accommodation as a key element. During the planning stages, the Office of Housing was approached and a partnership was forged between the drug Court and the Office of Housing. The Office of Housing will be providing 60 homes to Drug Court participants. In addition to the accommodation per se, the participants will be supported by officers from the Office of Housing who will talk to offenders about their material needs, link them into additional services and assist with driving them to their various appointments. COURT (PARALLEL) SERVICES The Magistrates Court of Victoria has implemented a number of support programs, known as parallel programs because they run parallel to and complement the traditional role of the court, to provide assistance and support as required to all court users who have special needs. The programs, although separate, work in corroboration with each other to provide the best service to individuals. The rock at almost every Magistrates Court in Victoria is of course the Salvation Army. Salvation Army Court officers work along side parallel services to provide assistance as necessary. Parallel services are described as follows: BAIL ADVOCACY SERVICE The Victorian Magistrates became increasingly aware that a significant number of offenders who ought to have been bailed were being denied bail due to social factors such as homelessness, lack of supports and lack of treatment. Concurrently, the Office of the Commissioner for Corrections became concerned about the numbers of remandees. After consultation, the pilot Bail Advocacy Service commenced in January, 2001, in an endeavour to put before the court appropriate bail proposals for bail applicants. Initially, the services role was to: To interview and assess bail applicants To provide advice and a detailed plan of accommodation, treatment and other relevant support services in respect of persons eligible for release on bail To facilitate contact with the families and friends of bail applicants in order to secure support for the applicants while they are on bail To develop and maintain linkages to appropriate accommodation placements within the community and government agencies. Initiate and facilitate linkages and access for defendants with mental Health Services, Disability Services and Drug Treatment agencies as required. To liaise and collaborate with the Juvenile Justice, Disability, Forensicare and CREDIT officers attached to the court To provide an advocacy and education role for persons on bail. One of the features of the program is that it is continually evolving to adapt to the needs of the remandees and the requirements of the Court. After a year of operation, the steering committee of the program noted that the program was an evolving one and identified that there had been a shift from and expansion of the original aims of the program. The four key areas identified are: The work of the Bail Advocacy service complemented the work of Victoria Legal Aid duty solicitors Bail support, referrals, and complex case management After-hours case support Development of community partnerships and programs Although there are many success stories emanating from this program, the most noteworthy relates to the following young offender. The offender is a young refugee from the Horn of Africa. Upon his arrival in Melbourne, he experienced severe difficulties in settling. His behaviour became problematic and he commenced abusing drugs. He became involved in low-level violence and became part of a gang. His illicit drug abuse escalated until he developed a significant opiate dependency. He was charged with a number of armed robberies. The bail service in conjunction with the Juvenile Justice Liaison service became involved with the offender. The bail service obtained a bed for him at a hostel for males awaiting residential drug rehabilitation and bail was set with strict conditions. The offender attended all medical and drug rehabilitation appointments arranged for him under the program for the duration of his bail, a period of several months. He was supervised on bail by both the bail co-ordinator and Juvenile Justice Liaison officer. He ceased illicit drug use entirely, (established by supervised urine analysis). He obtained employment and became a mentor to other young offenders. He was ultimately sentenced to a suspended sentence. CREDIT CREDIT is an acronym for: Court Referral & Evaluation for Drug Intervention & Treatment In 1998, the Magistrates Court of Victoria identified a need to address the escalation of offending due to substance abuse. Of considerable concern to the Magistrates was the fact that in most instances, substance abusing defendants were released on bail without anything in place to address their substance abuse. Many of these offenders continued to offend whilst on bail. The aims of the Program are to: Provide early treatment when the alleged offender is first arrested. Implement drug treatment by way of bail conditions whilst the alleged offender is awaiting disposition of the case. Develop a commitment on the part of the alleged offender to rehabilitation by capitalising on the immediacy of the arrest, and confrontation with the impact of the alleged offending at the time of arrest and release on bail. Divert substance-abusing offenders from incarceration. Reduce the risk of further offending. Harm minimisation to both the offender and community by addressing the issues related to substance abuse. The program is aimed at defendants arrested for non-violent offences: who have a demonstrable drug problem. who are at risk of committing further offences whilst on bail. who are at risk of harming themselves or others. who would normally be released on bail. who are suitable for drug treatment. Defendants who meet the criteria are bailed to the next Court sitting day where they are assessed by a Court based drug clinician. The drug clinician identifies and arranges the appropriate treatment. The defendant is bailed to a suitable date with conditions that he/she comply with the requirements of the CREDIT Program. The Magistrate who hears the remand application remains involved in the case until the CREDIT episode is completed. Since the program commenced, the following trends have emerged: Significant decrease in reoffending whilst on bail. Some offenders are motivated to increase the level of treatment from counselling to withdrawal as their treatment progresses on the program. Motivation by some offenders to extend treatment beyond initial recommendation. Offenders on the CREDIT program who are placed on Community Based Dispositions have a proven record in treatment. Their orders are of a shorter duration and they are able to continue the treatment regime which has been developed. Issues other than substance abuse are being addressed - such as family reunification. Several defendants have decreased their substance abuse to the point that they have been able to rejoin the work force. Participants have reported a positive interaction with the criminal justice system. Links are being forged with specific communities, for example the Indo-Chinese community, as the program becomes known within the communities as effective and culturally appropriate. Vietnamese participants and their families are expressing a sense of empowerment with the assistance provided under the program. CREDIT commenced at Melbourne Magistrates Court in November, 1998. It is now available at Sunshine, Dandenong and Ringwood and Geelong Courts. CREDIT will be available at additional courts during 2002. JUVENILE JUSTICE LIAISON The Juvenile Justice Liaison Officers assist the Magistrates court in relation to offenders aged between 17 and 21 years. They provide detailed qualitative information to the Court about young persons appearing but also seek to intervene at the time of the young persons first court appearance to ensure that personal issues that may lead to further offending are addressed prior to sentence. The Service provides: Timely pre-sentence reports for young offenders being considered for Youth Training Centre orders that would obviate the need for lengthy remand into the adult prison system. Advice on accommodation, programs or counselling and treatment that might be available as conditions of bail for young offenders who might otherwise be remanded into the adult prison system. Accurate and timely information to Magistrates in respect of remissions or parole that might apply to any period of detention a young offender might be undergoing at time of sentence. Information about eligibility for parole or treatment in progress for a young offender undergoing sentence and what effect a cumulative sentence may have upon eligibility for parole and current programs or treatment. Supervision and referral to appropriate agencies while young persons are on bail. Appropriate supervision, treatment and counselling for young offenders whose matters are to be dealt with by the County Court from the time of their first appearance in the Magistrates' Court to the time of sentence in the County Court. Officers liaise with the Disability Co-ordinator, Community Corrections, Bail co-ordinator and Forensicare personnel to provide a co-ordinated response to each individual offender. DISABILITY OFFICER The Court has become increasingly aware of its duty to respond to the special needs and circumstances of persons with disabilities who appear at the Magistrates Court and, more particularly, within the criminal justice system. In July 1997 a Disability Co-ordinator was appointed under the following job description: 1. To be responsible for the planning, establishment and management of disability services in the Magistrates' Court of Victoria including the monitoring and assessment of services. 2. Develop and manage a range of disability programs and provide advice to Magistrates and court officials. 3. Identify as soon as possible whether or not a person charged has a relevant disability. 4. Provide advice and reports to the Court on courses of action open to the Court for the appropriate disposition of the offender or the charges as the case may be. 5. Consult, negotiate and liaise with government, non-government agencies and professionals in the community to ensure appropriate and co-ordinated service delivery and to promote knowledge of the issues relating to the protection of persons with a disability. 6. Facilitate the implementation of appropriate procedures to protect the alleged offender if placed in custody or detention whilst on remand or sentence. 7. Report to the Chief Magistrate on the effectiveness of the operation of the Magistrates' Court criminal system in respect of disabled offenders. The Disability Co-ordinator has identified many of the gaps in services through which persons with disabilities in the Court system often fall, leaving them inadequately serviced or not serviced at all. As a result of this position bridges have been built over many of these gaps, or in some cases chasms. The Court, by being better informed of the needs of persons before it and the services that might be organised to address those needs, now has much closer links with relevant service providers and increased confidence in them. Th Disability Service continually expands. It currently operates a special scheme for intellectually disabled and mentally ill fine defaulters in an endeavour to keep them out of gaol for fine defaults. PSYCHIATRIC NURSES Forensicare has since 1994 provided on site psychiatric services to the Magistrates' Courts at Melbourne and Broadmeadows. At each of those Courts there is a senior qualified psychiatric nurse. The intention of this service was initially described as follows: "The service will be provided on-site by an experienced Registered Psychiatric Nurse together with on-call back-up from a Consultant Forensic Psychiatrist. The primary objectives of this service are: 1) To reduce the incidence of psychiatric illness in the prison system by facilitating the diversion of mentally ill offenders into appropriate psychiatric treatment services. 2) To reduce rates of recidivism in mentally ill offenders through facilitating access to appropriate psychiatric treatment services. 3) To reduce the number of persons remanded in prison custody for the purpose of psychiatric assessment. One of the most positive outcomes from the establishment of this service has been the dramatic reduction in the time psychiatrically ill offenders are required to spend in custody whilst psychiatric reports are prepared. Magistrates would now prefer to take advantage of this on-site service rather than remand offenders in custody for the preparation of psychiatric reports. In most instances preparation time has been reduced from 6 weeks to no more than 5 days and in many instances assessments are provided on the day they are requested. This is a most valuable service and one that is now regarded as essential for Magistrates in the exercise of their sentencing discretion. The Psychiatric Liaison Service complements the other liaison services now established by or provided to the Court. The service has been extended to other metropolitan courts. Country court locations have been included through Local Area Mental Health Services in conjunction with Forensicare. The importance of the need for flexibility among all the Court Services is highlighted in the example on page 3 of this paper. KOORIE LIAISON OFFICER The Victorian Aboriginal Justice Agreement states: The establishment of a Koori Liaison Officer Program is a priority for the Magistrates Court network in areas of significant Aboriginal communities (similar to existing disability and psychiatric liaison officer positions). The first position/s should be located at the Melbourne Court and then implemented across the state. This initiative is in its infancy. An officer has been appointed and it is anticipated that it will commence in the next few weeks. The objectives of the position are: Identification of specific needs/issues pertaining to individual Koori offenders Amassing of information relating to individual Koori offenders to enable a sentencer to make a better informed decision in relation to disposition Community liaison Police liaison Service liaison Pro-active community involvement to reduce representation of Kooris in the criminal justice system Liaise with regional Aboriginal Justice Advisory Committees To assist in the ongoing professional development of Magistrates in regard to Koori issues. ENFORCEMENT REVIEW PROJECT This project seeks to identify and assist members of the community with special needs, who are incurring a variety of multiple fine enforcements that are progressing to warrant stage. By reason of medical/social dysfunction, these recidivists have no means to meet their commitments. The Program will assist with a process that will bring these matters into the Magistrates Court for disposal. A further beneficial outcome of this service may be that these defendants, as a result of being processed via this system may be linked in with appropriate welfare/health services. It is anticipated that this project will amply demonstrate the economic and social futility of continually processing these defaulters through the revolving enforcement corridor, and hopefully lead to a review of the present system. This Group of offenders are those at the margins of society, who suffer from homelessness, intellectual disability, psychiatric illness, alcoholism, substance abuse, family fragmentation and severe social dysfunction. In addition they often fall outside even the most basic safety net such as the night shelters system, as they are often extremely transient, and display antisocial behaviours. It is these factors that interfere with the implementation of consistent case management, and as a consequence, prevent this group from being able to address their financial commitments in even the most minimal way. These offenders presents a range of issues with respect to processes associated with the enforcement of fines. Significant numbers of infringement notices are being issued by enforcement agencies against these individuals with special needs, who may not comprehend the consequences of their actions, have no capacity to pay fines and do not have any assets that can be seized and sold. The result of not being able to pay means that Perin Court orders and subsequent warrants are issued for these individuals. A report produced by Enforcement Management from the Victorian Infringement Management system (VIMS) reveals that there are 124 defendants who have incurred 20 warrants each or more for the non payment of fines issued for behavioural type offences committed on the public transport system. These defendants all fall into the category of those members of the community with special needs. This group of 124 defendants has amassed a total of 5399 warrants with an outstanding amount owing of $1,204,400.00. This situation has the potential to create significant embarrassment for the Government and impacts heavily on the resources of the Perin Court, Sheriffs Office and the Magistrates Court. Only a small minority of the individuals arrested by the Sheriff on warrants, from the above group, are either suitable, or indeed capable of performing community work. This has the potential for many of them to be held in custody and necessitates them being brought before the Magistrates Court to be dealt with. These individuals require assistance and intervention at an earlier stage of the enforcement cycle, which this proposed service will address. CONCLUSION I do not purport to provide a panacea for homelessness, (though dramatically increasing housing stock and the provision of housing support workers would be a step in the right direction). I have not sought to examine the reasons for it. My concern is simply that the criminal justice system, police watch-houses, Magistrates Courts and prisons in particular, has become a repository for persons such as the homeless who dont fit into mainstream society. My additional concern is that this group is ever increasing due to the increase in mental illness and acquired brain injury through drug over-dose, and the increase and complexity of personality disorders. The Magistrates Court is endeavouring to respond to the special needs of offenders but it would be far preferable for the needs to be catered for well before a person becomes an offender, not only for the individual, but for the safety of the community My special thanks to: Jo Beckett, Bail Advocate Anne Condon, Disability Officer Annie Marinakis, Enforcement Review Program Officer Sharon McLachlan, former CREDIT clinician Sally Plueckhahn, Psychiatric Liaison Nurse Steve Riordan, Juvenile Justice Liaison Officer Craig Taylor, Koorie Liaison Officer Who provided the material in this paper relating to the parallel services. PAGE  PAGE 17 7:Tjm I HeF^# #&&((((-N00>5?5@5G5H5N5O5b5c5h5i5s5t5555555557799::<<AABBGHHH*Q=QYYYQ]l]`bBd CJhnH hnH 5B*CJB*CJ 5B*CJB*B*CJ5CJH*5CJCJ(CJP789:Tjklmx  $dhdhdhdhdh&&0'1'''e(f((((AABBCCCTDEEFFGXXYYYYLYZ[[?[@[[$\6\E\U\\\P]Q]l]^^_`bgyiziiiwjRkSk"l#l"m#m$m:mTmtmmmm.nSnnnnnnnn   O I J > ? 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