18ZWhen drug and alcohol treatment order can be made

18Z When drug and alcohol treatment order can be made S. 18Z(1) amended by No. 43/2020 s. 12(2)(a). (1) The Drug Court may make a drug and alcohol treatment order if— S. 18Z(1)(a) amended by No. 43/2020 s. 12(2)(b). (a) an offender pleads guilty to an offence that is within the jurisdiction of the Magistrates' Court or the County Court (as the case requires) and punishable on conviction by imprisonment, other than— (i) a sexual offence as defined in section 6B(1); or (ii) subject to subsection (5), an offence involving the infliction of actual bodily harm; and (b) the Drug Court convicts the offender of the offence; and (c) the Drug Court is satisfied on the balance of probabilities that— (i) the offender is dependent on drugs or alcohol; and (ii) the offender's dependency contributed to the commission of the offence; and S. 18Z(1)(d) amended by No. 65/2011 s. 13(1), substituted by No. 43/2020 s. 12(2)(c). (d) the Drug Court considers that, otherwise, it would be appropriate to impose— (i) if the proceeding is in the Magistrates' Court, a sentence of imprisonment; or (ii) if the proceeding is in the County Court, a sentence of imprisonment of no more than 4 years; and S. 18Z(1)(da) inserted by No. 43/2020 s. 12(2)(c). (da) the Drug Court considers that, had it been appropriate to impose a sentence described in paragraph (d), the Drug Court would not have suspended that sentence in whole or in part; and S. 18Z(1)(e) amended by No. 43/2020 s. 12(2)(a). (e) the Drug Court has received a drug and alcohol treatment order assessment report on the offender under section 18ZQ. S. 18Z(2) amended by No. 43/2020 s. 12(3). (2) The Drug Court Division of the Magistrates' Court must not make a drug and alcohol treatment order in respect of an offender who is subject to— (a) a parole order; or S. 18Z(2)(b) repealed by No. 65/2011 s. 13(2). S. 18Z(2)(c) amended by No. 68/2009 s. 97(Sch. item 110.19). (c) a sentence of the County Court or Supreme Court. S. 18Z(2A) inserted by No. 43/2020 s. 12(4). (2A) The Drug Court Division of the County Court must not make a drug and alcohol treatment order in respect of an offender who is subject to— (a) a parole order; or (b) a sentence of the Supreme Court. S. 18Z(2B) inserted by No. 43/2020 s. 12(4). (2B) The Drug Court Division of the County Court must not make a drug and alcohol treatment order in respect of an offender who is convicted of an offence to which section 10, 10AA, 10AB, 10AC, 10AD or 10AE applies. S. 18Z(3) amended by No. 43/2020 s. 12(5). (3) The Drug Court must not make a drug and alcohol treatment order unless— (a) it is satisfied in all the circumstances that it is appropriate to do so; and (b) the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order. Section 18ZC sets out what the treatment and supervision part of the order is. S. 18Z(4) amended by No. 43/2020 s. 12(5). (4) The Drug Court may make a drug and alcohol treatment order in respect of an offender regardless of whether— (a) the offender's drug or alcohol dependency contributed on one or more previous occasions to the offender— (i) committing an offence of which the offender was convicted or found guilty; or S. 18Z(4)(a)(ii) amended by No. 68/2009 s. 97(Sch. item 110.19). (ii) failing to comply with the conditions of bail or of a sentence; or (b) the offender has been previously sentenced to one or more terms of imprisonment. S. 18Z(5) amended by No. 43/2020 s. 12(6). (5) Despite subsection (1)(a)(ii), the Division of the Magistrates' Court may make a drug and alcohol treatment order in respect of an offender where the offence involved the infliction of actual bodily harm if it is satisfied that the harm was of a minor nature. S. 18ZA inserted by No. 2/2002 s. 5. 18ZA Order can cover multiple offences S. 18ZA(1) amended by No. 43/2020 s. 13. (1) A drug and alcohol treatment order may be made in respect of one or more offences committed by an offender. S. 18ZA(2) amended by No. 43/2020 s. 13. (2) An offender can only be subject to one drug and alcohol treatment order at any particular time. S. 18ZB inserted by No. 2/2002 s. 5, amended by No. 43/2020 s. 14(1)(3) (ILA s. 39B(1)). 18ZB Effect of Drug Court declining to make an order (1) If an offender has pleaded guilty to an offence or offences in respect of which the Drug Court could make a drug and alcohol treatment order but it does not consider it appropriate to do so, the Drug Court must— (a) sentence the offender in relation to the offence or offences if the offender consents to the Drug Court doing so; or S. 18ZB(1)(b) substituted by No. 43/2020 s. 14(2). (b) adjourn the matter for sentencing in accordance with subsection (2) or (3) (whichever is applicable). S. 18ZB(2) inserted by No. 43/2020 s. 14(3). (2) If the Drug Court Division of the Magistrates' Court is to adjourn a matter under subsection (1)(b), it must adjourn the matter to the Magistrates' Court (other than the Drug Court) at the same venue. S. 18ZB(3) inserted by No. 43/2020 s. 14(3). (3) If the Drug Court Division of the County Court is to adjourn a matter under subsection (1)(b), it may adjourn the matter to either— (a) if the offence is within the jurisdiction of the Magistrates' Court, the Magistrates' Court; or (b) in any case, the County Court (other than the Drug Court) at the same venue. S. 18ZC (Heading) amended by No. 43/2020 s. 15(1). S. 18ZC inserted by No. 2/2002 s. 5. 18ZC The parts of a drug and alcohol treatment order S. 18ZC(1) amended by No. 43/2020 s. 15(2). (1) A drug and alcohol treatment order consists of 2 parts— (a) the treatment and supervision part; and (b) the custodial part. S. 18ZC(2) repealed by No. 43/2020 s. 15(3). S. 18ZC(3) amended by No. 43/2020 s. 15(4). (3) The custodial part of a drug and alcohol treatment order consists of the sentence of imprisonment that the Drug Court must impose on the offender under section 18ZD. S. 18ZC(4) inserted by No. 43/2020 s. 15(5). (4) The treatment and supervision part of a drug and alcohol treatment order consists of— (a) the core conditions attached to the order; and (b) the program conditions attached to the order. S. 18ZC(5) inserted by No. 43/2020 s. 15(5). (5) The core conditions operate— (a) if the custodial part is a sentence of imprisonment of no more than 2 years— (i) for 2 years; or (ii) if the treatment and supervision part is cancelled earlier under section 18ZK, 18ZN or 18ZP, until that cancellation; or (b) if the custodial part is a sentence of imprisonment of more than 2 years— (i) for the length of the custodial part; or (ii) if the treatment and supervision part is cancelled earlier under section 18ZK, 18ZN or 18ZP, until that cancellation. S. 18ZC(6) inserted by No. 43/2020 s. 15(5). (6) The program conditions operate— (a) for 2 years; or (b) if the treatment and supervision part is cancelled earlier under section 18ZK, 18ZN or 18ZP, until that cancellation. S. 18ZC(7) inserted by No. 43/2020 s. 15(5). (7) The treatment and supervision part is taken to continue to operate while either the core conditions or the program conditions operate. S. 18ZD inserted by No. 2/2002 s. 5. 18ZD Sentence of imprisonment must be imposed S. 18ZD(1) amended by No. 43/2020 s. 16(1). (1) When making a drug and alcohol treatment order, the Drug Court must impose on the offender a sentence of imprisonment of no more than the maximum duration specified in subsection (1A). S. 18ZD(1A) inserted by No. 43/2020 s. 16(2). (1A) The maximum duration is— (a) for the Drug Court Division of the Magistrates' Court, 2 years; or (b) for the Drug Court Division of the County Court, 4 years. S. 18ZD(2) amended by No. 43/2020 s. 16(3)(a). (2) The Drug Court must impose the sentence of imprisonment that it would have imposed if it had not made the drug and alcohol treatment order. (3) Despite anything to the contrary in section 11, the Drug Court must not fix a non-parole period in accordance with that section as part of the sentence imposed by it. Note to s. 18ZD(3) amended by No. 43/2020 s. 16(3)(b). A non-parole period may be fixed as part of certain orders under this Subdivision activating the custodial part of a drug and alcohol treatment order (see section 18ZE(3)). S. 18ZE inserted by No. 2/2002 s. 5. 18ZE Activation of custodial part of an order S. 18ZE(1) amended by No. 43/2020 s. 17(1). (1) Despite anything to the contrary in this Act, an offender is not to serve the custodial part of a drug and alcohol treatment order, and that part of the order does not commence, except in accordance with an order under this Subdivision activating that part of the order. The Drug Court may make an order activating some or all of the custodial part under section 18ZL(1)(f) (which involves serving a period in a secure custody facility), or under section 18ZN or 18ZP. S. 18ZE(2) amended by No. 43/2020 s. 17(1). (2) In making an order under this Subdivision activating some or all of the custodial part of a drug and alcohol treatment order, the Drug Court must first— (a) calculate the remaining length of the custodial part of the order by subtracting from the length of the sentence of imprisonment imposed under the order— (i) each period of custody declared under this Act as reckoned to be a period already served under the sentence; and (ii) each period of custody served in a secure custody facility under the custodial part of the order because of an order under section 18ZL(1)(f); and S. 18ZE(2)(b) substituted by No. 43/2020 s. 17(2). (b) if required to do so by subsection (2A) or (2B), reduce the remaining length of the custodial part of the order in accordance with whichever of those subsections applies. S. 18ZE(2A) inserted by No. 43/2020 s. 17(3). (2A) For the purposes of subsection (2)(b), if— (a) the length of the custodial part of the drug and alcohol treatment order is no more than 2 years; and (b) the sum of the following periods of time is more than 2 years— (i) the remaining length of the custodial part; and (ii) the period during which the treatment and supervision part of the order has already operated— the remaining length of the custodial part must be reduced so that the sum of those periods is 2 years. S. 18ZE(2B) inserted by No. 43/2020 s. 17(3). (2B) For the purposes of subsection (2)(b), if— (a) the length of the custodial part of the drug and alcohol treatment order is more than 2 years; and (b) the sum of the following periods of time is more than the length of the custodial part— (i) the remaining length of the custodial part; and (ii) the period during which the treatment and supervision part of the order has already operated— the remaining length of the custodial part must be reduced so that the sum of those periods is equal to the length of the custodial part. S. 18ZE(3) amended by No. 43/2020 s. 17(1). (3) If the Drug Court makes an order under section 18ZN(1)(b)(i) or 18ZP(2)(a) activating the custodial part of a drug and alcohol treatment order for a period of one year or more, the Drug Court may, as part of the order under that section, fix in respect of the custodial part a non-parole period in accordance with section 11, as if the Drug Court had just sentenced the offender to that term of imprisonment. Example to s. 18ZE(3) amended by No. 43/2020 s. 17(1). The Drug Court decides to make an order activating the custodial part of a drug and alcohol treatment order 18 months after the drug and alcohol treatment order was made. When it made the drug and alcohol treatment order, it imposed a sentence of imprisonment of 8 months. The Drug Court— (a) calculates that the remaining length of the custodial part of the drug and alcohol treatment order is 7 months because the length of the sentence of imprisonment imposed under the order was 8 months from which the Drug Court subtracts— (i) 14 days that the offender spent in custody before sentencing; and (ii) 16 days that the offender served in a secure custody facility because of an earlier order under section 18ZL(1)(f); and (b) calculates that the total of— (i) the remaining length of the custodial part (7 months); and (ii) the period during which the treatment and supervision part of the drug and alcohol treatment order has already operated (18 months)— is 25 months, which is 1 month over 2 years; and (c) so that the total is 2 years, reduces the remaining length of the custodial part by 1 month to 6 months. This means that the Drug Court may make an order activating the custodial part for no more than 6 months. S. 18ZF inserted by No. 2/2002 s. 5. 18ZF Core conditions S. 18ZF(1) amended by No. 43/2020 s. 18. (1) The core conditions attached to a drug and alcohol treatment order are that, while the treatment and supervision part of the order operates, the offender— (a) must not commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment; and (b) must attend the Drug Court when required by the Drug Court to do so; and (c) must report to a specified community corrections centre or other specified place within 2 clear working days after the order is made; and (d) must undergo treatment for drug or alcohol dependency as specified in the order or from time to time by— (i) the Drug Court; or (ii) a specified community corrections officer; or (e) must report to, and accept visits from, a specified community corrections officer or specified Drug Court officer; and (f) must give notice of any change of address within 2 clear working days before the change, unless there are special circumstances, to— (i) the Drug Court; or (ii) a specified community corrections officer; or (g) must not leave Victoria except with the permission, granted either generally or in a particular case, of one of the following— (i) the Drug Court; (ii) a specified community corrections officer; (h) must obey all lawful instructions and directions of the Drug Court, community corrections officers or specified Drug Court officers. S. 18ZF(2) amended by No. 43/2020 s. 18. (2) A drug and alcohol treatment order must have all the core conditions attached to it and the offender must comply with all of those conditions. S. 18ZG inserted by No. 2/2002 s. 5. 18ZG Program conditions S. 18ZG(1) amended by No. 43/2020 s. 19(1). (1) The program conditions that may be attached to a drug and alcohol treatment order are that, while the treatment and supervision part of the order operates, the offender— (a) must submit to drug or alcohol testing as specified in the order; and (b) must submit to detoxification or other treatment specified in the order (whether or not residential in nature); and (c) must attend vocational, educational, employment or other programs as specified in the order; and (d) must submit to medical, psychiatric or psychological treatment as specified in the order; and (e) must not associate with specified persons; and (f) must reside at a specified place for a specified period; and (g) must do or not do anything else that the Drug Court considers necessary or appropriate concerning— (i) the offender's drug or alcohol dependency; or (ii) the personal factors that the Drug Court considers contributed to the offender's criminal behaviour. Note to s. 18ZG(1) inserted by No. 43/2020 s. 19(2). Section 18ZC(7) sets out the period during which the treatment and supervision part of a drug and alcohol treatment order operates. S. 18ZG(2) amended by No. 43/2020 s. 19(1). (2) The Drug Court must attach to a drug and alcohol treatment order at least one program condition but must not attach any more program conditions than it considers necessary to achieve the purposes for which the order is made. S. 18ZG(3) amended by No. 43/2020 s. 19(1). (3) An offender must comply with all of the program conditions attached to the drug and alcohol treatment order. S. 18ZGA inserted by No. 30/2010 s. 10, repealed by No. 48/2011 s. 17. S. 18ZH inserted by No. 2/2002 s. 5. 18ZH Variation on assessing offender's progress S. 18ZH(1) amended by No. 43/2020 s. 20(1). (1) The Drug Court may vary the treatment and supervision part of a drug and alcohol treatment order from time to time if the Drug Court considers it appropriate to do so based on its assessment of the offender's progress. Note to s. 18ZH(1) amended by No. 43/2020 s. 20(1). The Drug Court may also vary the treatment and supervision part of a drug and alcohol treatment order under section 18ZJ, 18ZL or 18ZN. (2) The Drug Court may do so on its own initiative or on the application of— S. 18ZH(2)(b) substituted by No. 43/2020 s. 20(2). (b) the informant, the police prosecutor, or the prosecution (as the case requires); or (c) a prescribed person or a person in a prescribed class of persons. (3) The treatment and supervision part of the order may be varied by— (b) varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program conditions, for example to vary— (iii) the frequency of drug or alcohol testing; or (iv) the type or frequency of vocational, educational, employment or other programs that the offender must attend. S. 18ZI inserted by No. 2/2002 s. 5. 18ZI Case conferences S. 18ZI(1) amended by No. 43/2020 s. 21(1)(2). (1) For the purpose of being informed from time to time about the progress being made by an offender subject to a drug and alcohol treatment order, the judicial officer constituting the Drug Court may convene a case conference. S. 18ZI(2) amended by Nos 18/2005 s. 18(Sch. 1 item 97.2), 43/2020 s. 21(2). (2) A case conference may be attended by a lawyer, a prosecutor, a health service provider, a community corrections officer or anyone else whom the judicial officer thinks should attend. S. 18ZI(3) amended by Nos 65/2016 s. 7, 43/2020 s. 21(1). (3) For the purposes of section 104ZY of the **Corrections Act 1986**, a relevant person referred to in that section who discloses at a case conference information about an offender subject to a drug and alcohol treatment order is taken to be performing his or her official duties. S. 18ZI(4) amended by No. 43/2020 s. 21(2). (4) No objection can be taken to a judicial officer subsequently constituting the Drug Court in a proceeding on the ground that he or she had previously convened a case conference in relation to the proceeding. S. 18ZI(5) inserted by No. 43/2020 s. 21(3). (5) In this section— ***judicial officer*** means— (a) for the Drug Court Division of the Magistrates' Court, a magistrate; or (b) for the Drug Court Division of the County Court, a judicial registrar, associate judge, or judge of the County Court. S. 18ZJ inserted by No. 2/2002 s. 5. 18ZJ Rewards for complying with conditions S. 18ZJ(1) amended by No. 43/2020 s. 22. (1) The Drug Court may, on its own initiative, confer a reward from time to time on an offender who is or has been fully or substantially complying with the conditions attached to a drug and alcohol treatment order by doing one or more of the following— (a) varying the treatment and supervision part of the order under subsection (2); (b) varying or cancelling an order under section 18ZL(1)(c), (d) or (e); S. 18ZJ(1)(c) amended by No. 43/2020 s. 22. (c) making an order that some or all of a period for which the custodial part of the drug and alcohol treatment order is activated under section 18ZL(1)(f), but which the offender is yet to serve in a secure custody facility, is no longer activated; (d) conferring on the offender any other reward that the Drug Court considers appropriate. (2) The treatment and supervision part of the order may be varied by— (b) varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program conditions, for example to reduce— (iii) the frequency of drug or alcohol testing. S. 18ZK inserted by No. 2/2002 s. 5. 18ZK Cancellation as a reward S. 18ZK(1) amended by No. 43/2020 s. 23(1)(3). (1) Subject to subsection (1A), the Drug Court may, on its own initiative, as a reward cancel the treatment and supervision part and custodial part of a drug and alcohol treatment order if it considers that— (a) the offender has to date fully or substantially complied with the conditions attached to the order; and (b) the continuation of the order is no longer necessary to meet the purposes for which it was made. S. 18ZK(1A) inserted by No. 43/2020 s. 23(2). (1A) The Drug Court Division of the County Court must not as a reward cancel the treatment and supervision part and custodial part of a drug and alcohol treatment order after the program conditions have ceased to operate. S. 18ZK(2) amended by No. 43/2020 s. 23(3). (2) To avoid doubt, if the Drug Court cancels the treatment and supervision part and custodial part of a drug and alcohol treatment order under this section any earlier orders activating the custodial part of the order cease to have effect. S. 18ZL inserted by No. 2/2002 s. 5. 18ZL Failure to comply with conditions S. 18ZL(1) amended by No. 43/2020 s. 24(1). (1) If the Drug Court is satisfied on the balance of probabilities that an offender has, without reasonable excuse, failed to comply with a condition attached to a drug and alcohol treatment order (other than by committing an offence punishable on conviction by imprisonment for more than 12 months) the Drug Court must take one of the following actions— (a) confirm the treatment and supervision part of the order; (b) vary that part of the order under subsection (3); (c) order that a curfew, requiring the offender to remain at a specified place between specified hours, applies to the offender for a specified period; (d) order that the offender perform up to 20 hours of unpaid community work as directed by the Regional Manager of the region in which the community corrections centre specified in the order is located; (e) order that the offender remain at a specified place, other than a secure custody facility, for a specified period of up to 14 days; S. 18ZL(1)(f) amended by No. 43/2020 s. 24(1). (f) subject to section 18ZM, order that the custodial part of the drug and alcohol treatment order is activated for a specified period of between one and 7 days to be served in a secure custody facility. Notes to s. 18ZL(1) amended by No. 43/2020 s. 24(1). 1 If the offender commits an offence punishable on conviction by imprisonment for more than 12 months, see section 18ZN. 2 Section 18ZE sets out how much of the custodial part of a drug and alcohol treatment order can be activated. 3 For ***secure custody facility*** see section 3(1). (2) In deciding which action to take under subsection (1), the Drug Court must consider each of the actions in the order in which they appear and must only take the first action that the Court considers to be appropriate in the circumstances. (3) The treatment and supervision part of the order may be varied by— (b) varying one or more core conditions, other than the condition referred to in section 18ZF(1)(a), or program conditions, for example to increase— (iii) the frequency of drug or alcohol testing. (4) If the Drug Court is satisfied on the balance of probabilities that an offender who is subject to an order under subsection (1)(c), (d) or (e) has failed to comply with the order, the Drug Court must take one of the following actions— (a) confirm or vary that order; S. 18ZL(4)(b) amended by No. 43/2020 s. 24(1). (b) cancel that order and take any action under subsection (1), including making another order of the same kind, as though the offender had failed to comply with a condition attached to the drug and alcohol treatment order. Note to s. 18ZL(4)(b) amended by No. 43/2020 s. 24(1). In addition, the Drug Court may cancel the treatment and supervision part of the drug and alcohol treatment order and may also cancel the custodial part of that order (see section 18ZP). (5) The Drug Court may take an action under subsection (1) or (4) on its own initiative or on an application by— S. 18ZL(5)(a) substituted by No. 43/2020 s. 24(2). (a) the informant, the police prosecutor, or the prosecution (as the case requires); or (b) a prescribed person or a person in a prescribed class of persons. S. 18ZM inserted by No. 2/2002 s. 5. 18ZM Service in a secure custody facility S. 18ZM(1) amended by No. 43/2020 s. 25(1). (1) The Drug Court may only make an order under section 18ZL(1)(f) if it is satisfied beyond reasonable doubt that the offender has failed to comply with the condition attached to the drug and alcohol treatment order. (2) If the Drug Court makes an order under that section, it— (a) must specify in the order the kind of secure custody facility in which the period is to be served; and S. 18ZM(2)(b) amended by No. 48/2006 s. 42(Sch. item 32.3). (b) must only specify a youth justice centre if the offender is a young offender and the Drug Court considers it appropriate to do so. (3) An offender can only be required to serve a period in a secure custody facility in accordance with an order under section 18ZL(1)(f) when— (a) the period under the order under section 18ZL(1)(f); or (b) the total of the periods for which the custodial part is activated under 2 or more such orders and which the offender has not yet served— is at least 7 days, not including so much of the period or periods as is no longer activated because of an order under section 18ZJ(1)(c). Note to s. 18ZM(3) amended by No. 43/2020 s. 25(1). An order may be made under section 18ZJ(1)(c) as a reward for complying with the conditions attached to a drug and alcohol treatment order. (4) Before the Drug Court makes an order under section 18ZL(1)(f), notice of the hearing concerning the making of the order must be given to— S. 18ZM(4)(b) substituted by No. 43/2020 s. 25(2). and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. (5) If the Drug Court makes an order under section 18ZL(1)(f) the Drug Court may, for the purposes of giving effect to that order, issue a warrant to imprison the offender under section 68 of the **Magistrates' Court Act 1989**. S. 18ZM(6) inserted by No. 43/2020 s. 25(3). (6) The Drug Court Division of the County Court may exercise any power conferred under the **Magistrates' Court Act 1989** with respect to the issue, recall or cancellation of a warrant issued under subsection (5), or a duplicate copy of such a warrant. S. 18ZN inserted by No. 2/2002 s. 5. 18ZN Commission of certain offences S. 18ZN(1) amended by No. 43/2020 s. 26(1). (1) If the Drug Court is satisfied beyond reasonable doubt that an offender has failed to comply with a condition attached to a drug and alcohol treatment order, by committing an offence punishable on conviction by imprisonment for more than 12 months, the Drug Court must— S. 18ZN(1)(a) amended by No. 35/2002 s. 28(Sch. item 5.1). (a) take any of the actions under section 18ZL(1) as though the offender had failed to comply with any other condition attached to the order; or (b) cancel the treatment and supervision part of the order and, after taking into account the extent to which the offender complied with that part of the order— S. 18ZN (1)(b)(i) amended by No. 43/2020 s. 26(1). (i) make an order activating some or all of the custodial part of the drug and alcohol treatment order; or S. 18ZN (1)(b)(ii) amended by No. 43/2020 s. 26(1). (ii) cancel the custodial part of the drug and alcohol treatment order and deal with the offender for each offence in respect of which the drug and alcohol treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a). Notes to s. 18ZN(1) amended by No. 43/2020 s. 26(1). 1 Section 18ZE sets out how much of the custodial part of a drug and alcohol treatment order can be activated. 2 The Drug Court may be required to take an action under paragraph (b) because of section 18ZO(3). (2) The Drug Court may take an action under subsection (1) on its own initiative or on an application by— S. 18ZN(2)(a) substituted by No. 43/2020 s. 26(2). (a) the informant, the police prosecutor, or the prosecution (as the case requires); or (b) a prescribed person or a person in a prescribed class of persons. S. 18ZN(3) amended by No. 43/2020 s. 26(1). (3) Before the Drug Court cancels the treatment and supervision part of a drug and alcohol treatment order under subsection (1) (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to— S. 18ZN(3)(b) substituted by No. 43/2020 s. 26(3). and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. S. 18ZN(3A) inserted by No. 30/2005 s. 8(1), amended by No. 43/2020 s. 26(1). (3A) If notice of the hearing concerning the cancellation of the treatment and supervision part of a drug and alcohol treatment order— (a) has been given to the offender or has been, to the satisfaction of the Drug Court, attempted to be given to the offender but the attempt is not successful; and (b) the offender does not attend for the hearing— then the treatment and supervision part of the drug and alcohol treatment order is suspended and the period between the failure to attend the hearing and the day on which the offender does attend the Drug Court for the hearing does not count in calculating the period for which that part of the order operates. S. 18ZN(4) amended by No. 43/2020 s. 26(1). (4) To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug and alcohol treatment order under this section, any earlier orders activating the custodial part of the order cease to have effect. S. 18ZO inserted by No. 2/2002 s. 5. 18ZO Drug Court may hear and determine certain offences S. 18ZO(1) substituted by No. 43/2020 s. 27(1). (1) If an offender who is subject to a drug and alcohol treatment order made by the Drug Court Division of the Magistrates' Court is charged with an offence that is within the jurisdiction of the Magistrates' Court— (a) the Drug Court Division of the Magistrates' Court may hear and determine the offence; and (b) for the purposes of the **Magistrates' Court Act 1989**, the Drug Court Division of the Magistrates' Court is taken to be the proper venue in relation to the proceeding for that offence. S. 18ZO(1A) inserted by No. 43/2020 s. 27(1). (1A) If an offender who is subject to a drug and alcohol treatment order made by the Drug Court Division of the County Court is charged with, and pleads guilty to, an offence that is within the jurisdiction of the Magistrates' Court— (a) the Magistrates' Court must order that the proceeding in respect of the charge is transferred to the Drug Court Division of the County Court; and (b) the Drug Court Division of the County Court may deal with the offender for that offence. S. 18ZO(1B) inserted by No. 43/2020 s. 27(1). (1B) If an offender who is subject to a drug and alcohol treatment order made by the Drug Court Division of the County Court is charged with an offence that is within the jurisdiction of the County Court, the Drug Court Division of the County Court may hear and determine the offence. S. 18ZO(1C) inserted by No. 43/2020 s. 27(1). (1C) For the purposes of subsections (1), (1A) and (1B), it does not matter whether the offence with which the offender is charged is alleged to have been committed before or after the drug and alcohol treatment order was made. S. 18ZO(1D) inserted by No. 43/2020 s. 27(1), amended by No. 12/2024 s. 64. (1D) Subsections (1A) and (1B) do not apply after the fifth anniversary of the commencement of section 3 of the **Justice Legislation Amendment (Drug Court and Other Matters) Act 2020**. S. 18ZO(2) amended by No. 43/2020 s. 27(2). (2) If— (a) the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and S. 18ZO(2)(b) substituted by No. 65/2011 s. 14(1). (b) the Drug Court does not suspend the sentence in whole or in part; and S. 18ZO(2)(c) amended by No. 43/2020 s. 27(2). (c) the length of the sentence imposed is not more than the remaining length of the custodial part of the drug and alcohol treatment order (as calculated in accordance with section 18ZE(2)(a)); and S. 18ZO(2)(d) amended by No. 43/2020 s. 27(2). (d) the offence is a kind of offence in respect of which the Drug Court could make a drug and alcohol treatment order if the offender were not already subject to one— in imposing the sentence, the Drug Court may order that the sentence is subsumed within the custodial part of the drug and alcohol treatment order. S. 18ZO(3) amended by No. 43/2020 s. 27(2). (3) If— (a) the Drug Court convicts the offender of the offence and imposes a sentence of imprisonment on the offender in respect of the offence; and S. 18ZO(3)(b) substituted by No. 65/2011 s. 14(2). (b) the Drug Court does not suspend the sentence in whole or in part; and S. 18ZO(3)(c) amended by No. 43/2020 s. 27(2). (c) the Drug Court does not order under subsection (2) that the sentence is subsumed within the custodial part of the drug and alcohol treatment order— the Drug Court must cancel the treatment and supervision part of the drug and alcohol treatment order under section 18ZN(1)(b) and take an action under subparagraph (i) or (ii) of that section. S. 18ZP inserted by No. 2/2002 s. 5. 18ZP Cancellation S. 18ZP(1) amended by No. 43/2020 s. 28(1). (1) The Drug Court may cancel the treatment and supervision part of a drug and alcohol treatment order if it is satisfied on the balance of probabilities that— S. 18ZP(1)(a) amended by No. 43/2020 s. 28(1). (a) before the order was made, the offender's circumstances were not accurately presented to either the Drug Court or the author of the drug and alcohol treatment order assessment report on the offender; or (b) the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or (c) the offender is no longer willing to comply with one or more conditions attached to the order; or (d) the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or (e) the offender has breached an order under subsection 18ZL(1)(c), (d) or (e). The Drug Court may also cancel the treatment and supervision part of the order under section 18ZK or 18ZN. (2) When cancelling the treatment and supervision part of the order under subsection (1), the Drug Court must, after taking into account the extent to which the offender complied with that part of the order, take one of the following actions— S. 18ZP(2)(a) amended by No. 43/2020 s. 28(1). (a) make an order activating some or all of the custodial part of the drug and alcohol treatment order; S. 18ZP(2)(b) amended by No. 43/2020 s. 28(1). (b) cancel the custodial part of the drug and alcohol treatment order and deal with the offender for each offence in respect of which the drug and alcohol treatment order was made in any way in which the Drug Court could deal with the offender if it had just convicted him or her of each offence, other than by making an order under section 7(1)(a). Note to s. 18ZP(2)(b) amended by No. 43/2020 s. 28(1). Section 18ZE sets out how much of the custodial part of a drug and alcohol treatment order can be activated. (3) The Drug Court may take an action under subsection (1) or (2) on its own initiative or on the application of— S. 18ZP(3)(b) substituted by No. 43/2020 s. 28(2). (b) the informant, the police prosecutor, or the prosecution (as the case requires); or (c) a prescribed person or a person in a prescribed class of persons. S. 18ZP(4) amended by No. 43/2020 s. 28(1). (4) Before the Drug Court cancels the treatment and supervision part of a drug and alcohol treatment order (whether or not it also cancels the custodial part), notice of the hearing concerning the cancellation must be given to— S. 18ZP(4)(b) substituted by No. 43/2020 s. 28(3). and the Drug Court may order that a warrant to arrest be issued against the offender if he or she does not attend for the hearing. S. 18ZP(4A) inserted by No. 30/2005 s. 8(2), amended by No. 43/2020 s. 28(1). (4A) If notice of the hearing concerning the cancellation of the treatment and supervision part of a drug and alcohol treatment order— (a) has been given to the offender or has been, to the satisfaction of the Drug Court, attempted to be given to the offender but the attempt is not successful; and (b) the offender does not attend for the hearing— then the treatment and supervision part of the drug and alcohol treatment order is suspended and the period between the failure to attend the hearing and the day on which the offender does attend the Drug Court for the hearing does not count in calculating the period for which that part of the order operates. S. 18ZP(5) amended by No. 43/2020 s. 28(1). (5) To avoid doubt, if the Drug Court cancels the treatment and supervision part or custodial part of a drug and alcohol treatment order under this section, any earlier orders activating the custodial part of the order cease to have effect. S. 18ZQ (Heading) amended by No. 43/2020 s. 29(1). S. 18ZQ inserted by No. 2/2002 s. 5. 18ZQ Drug and alcohol treatment order assessment reports S. 18ZQ(1) amended by Nos 68/2009 s. 97(Sch. item 110.20 (a)), 43/2020 s. 29(2). (1) If the Drug Court is considering making a drug and alcohol treatment order at any stage after an accused has indicated an intention to plead guilty to an offence, or has pleaded guilty to an offence, it must— S. 18ZQ(1)(a) amended by Nos 68/2009 s. 97(Sch. item 110.20 (b)), 43/2020 s. 29(2). (a) order a drug and alcohol treatment order assessment report on the accused; and (b) adjourn the proceeding to enable the report to be prepared by a specified Drug Court officer. S. 18ZQ(2) amended by No. 43/2020 s. 29(2). (2) The purpose of a drug and alcohol treatment order assessment report is— S. 18ZQ(2)(a) amended by Nos 68/2009 s. 97(Sch. item 110.21), 43/2020 s. 29(2). (a) to establish whether the accused is a suitable person to be subject to a drug and alcohol treatment order; and (b) if so— S. 18ZQ (2)(b)(i) amended by No. 68/2009 s. 97(Sch. item 110.21). (i) to prepare a case management plan for the accused; and (ii) to establish whether the facilities necessary to implement that plan exist and, if so, to identify those facilities; and S. 18ZQ (2)(b)(iii) amended by Nos 68/2009 s. 97(Sch. item 110.21), 43/2020 s. 29(2). (iii) to make recommendations to the Drug Court on the program conditions that should be attached to a drug and alcohol treatment order in respect of the accused. S. 18ZQ(3) amended by No. 68/2009 s. 97(Sch. item 110.22). (3) If the Drug Court grants an accused bail on an adjournment under subsection (1) it must, for the purpose of facilitating the preparation of the report, impose a condition of bail requiring the accused to— (a) report to the specified Drug Court officer, or other specified person or body, within a specified period; and (b) comply with any further reporting requirements imposed by that officer, person or body. S. 18ZQ(4) substituted by No. 68/2009 s. 97(Sch. item 110.23), amended by No. 43/2020 s. 29(2). (4) A drug and alcohol treatment order assessment report may set out all or any of the following matters which, on investigation, appear to the specified Drug Court officer to be relevant to the assessment of the accused and are readily ascertainable by the officer— (a) the age of the accused; (b) the social history and background of the accused; (c) the medical and psychiatric history of the accused, including details of any treatment the accused has undergone for drug or alcohol dependency; (d) the educational background of the accused; (e) the employment history of the accused; (f) the circumstances of any other offences of which the accused has been found guilty; (g) the extent to which the accused— (i) has complied with any sentence that is no longer in force in respect of the accused; and (ii) is complying with any sentence currently in force in respect of the accused; (h) the financial circumstances of the accused; (i) the housing history and needs of the accused; (j) any special needs of the accused; (k) any course, program, treatment, therapy or other assistance that could be available to the offender and from which he or she may benefit. S. 18ZQ(5) amended by No. 68/2009 s. 97(Sch. item 110.24). (5) The specified Drug Court officer must include in the report any other matter relevant to the accused which the Drug Court has directed to be set out in the report. (6) The report must be filed with the Drug Court no later than the time directed by the Court. S. 18ZQ(7) amended by No. 43/2020 s. 29(2). (7) Within a reasonable time after the report is filed and before a drug and alcohol treatment order is made, the specified Drug Court officer must provide a copy of the report to— S. 18ZQ(7)(b) amended by No. 68/2009 s. 97(Sch. item 110.25). (b) the legal practitioner of the accused; and S. 18ZQ(7)(c) amended by No. 68/2009 s. 97(Sch. item 110.26). (c) if the Drug Court directs the officer to do so, the accused. S. 18ZQ(8) amended by No. 43/2020 s. 29(2). (8) The prosecution or defence may file with the Drug Court a notice of intention to dispute all or any part of a drug and alcohol treatment order assessment report. S. 18ZQ(9) amended by No. 43/2020 s. 29(2). (9) If a notice is filed before a drug and alcohol treatment order is made, the Drug Court must not take the disputed report or disputed part of the report into consideration when making the order unless the party that filed the notice has been given the opportunity— (b) to cross-examine the specified Drug Court officer on its contents. S. 18ZQ(10) amended by Nos 68/2009 s. 97(Sch. item 110.27), 65/2016 s. 8, 43/2020 s. 29(2). (10) For the purposes of section 104ZY of the **Corrections Act 1986**, a relevant person referred to in that section who discloses to the specified Drug Court officer information about the accused for the purposes of the preparation of a drug and alcohol treatment order assessment report is taken to be performing his or her official duties. S. 18ZR (Heading) amended by No. 43/2020 s. 30(1). S. 18ZR inserted by No. 2/2002 s. 5. 18ZR Appeals from Magistrates' Court S. 18ZR(1) amended by Nos 68/2009 s. 97(Sch. item 110.28), 43/2020 s. 30(2)(11). (1) On the hearing of an appeal under section 254 or 257 of the **Criminal Procedure Act 2009** against a sentence imposed by the Magistrates' Court (including the Drug Court Division of the Magistrates' Court), the County Court cannot itself make a drug and alcohol treatment order, despite anything to the contrary in section 256(2) or 259(2) (as the case requires) of that Act. S. 18ZR(2) amended by Nos 68/2009 s. 97(Sch. item 110.29), 43/2020 s. 30(3). (2) Part 6.1 of Chapter 6 of the **Criminal Procedure Act 2009** applies with respect to appeals to the County Court against any sentence imposed by the Drug Court Division of the Magistrates' Court with the following modifications— (a) an appeal does not lie against— S. 18ZR (2)(a)(i) amended by No. 43/2020 s. 30(11). (i) a refusal of the Drug Court to make a drug and alcohol treatment order; or S. 18ZR (2)(a)(ii) amended by No. 43/2020 s. 30(11). (ii) a finding that an offender has failed to comply with a condition attached to a drug and alcohol treatment order; or S. 18ZR (2)(a)(iii) amended by No. 43/2020 s. 30(11). (iii) the variation of the treatment and supervision part of a drug and alcohol treatment order; or S. 18ZR (2)(a)(iv) amended by No. 43/2020 s. 30(11). (iv) the cancellation of the treatment and supervision part, or the custodial part, of a drug and alcohol treatment order; S. 18ZR(2)(b) amended by No. 43/2020 s. 30(11). (b) if the appeal is against the custodial part of the drug and alcohol treatment order and not against the treatment and supervision part of the order, the appeal does not operate as a stay of the drug and alcohol treatment order, unless the County Court so orders. S. 18ZR(3) amended by Nos 68/2009 s. 97(Sch. item 110.30), 43/2020 s. 30(4)(11). (3) For the purposes of Part 6.1 of Chapter 6 of the **Criminal Procedure Act 2009** an order under this Subdivision activating some or all of the custodial part of a drug and alcohol treatment order is taken to be a sentence imposed by the Drug Court Division of the Magistrates' Court. S. 18ZR(4) amended by Nos 68/2009 s. 97(Sch. item 110.31 (a)), 43/2020 s. 30(5)(11). (4) Despite subsection (1), on the hearing of an appeal under section 254 or 257 of the **Criminal Procedure Act 2009** against a drug and alcohol treatment order made by the Drug Court Division of the Magistrates' Court, the County Court may— S. 18ZR(4)(a) amended by Nos 68/2009 s. 97(Sch. item 110.31 (b)), 43/2020 s. 30(11). (a) re-instate the drug and alcohol treatment order set aside by it under section 256(2)(a) or section 259(2)(a) of that Act (as the case requires); or S. 18ZR(4)(b) amended by Nos 68/2009 s. 97(Sch. item 110.31 (b)), 43/2020 s. 30(11). (b) if the appeal is against the custodial part of the drug and alcohol treatment order, re-instate that part set aside by it under section 256(2)(a) or section 259(2)(a) of that Act (as the case requires) or vary the drug and alcohol treatment order by increasing or reducing the length of the sentence of imprisonment. S. 18ZR(5) amended by Nos 68/2009 s. 97(Sch. item 110.32), 43/2020 s. 30(6)(11). (5) On the hearing of an appeal under section 254 or 257 of the **Criminal Procedure Act 2009** against a sentence imposed by the Magistrates' Court (other than the Drug Court Division of the Magistrates' Court) at a particular venue of that Court, if the County Court considers that the making of a drug and alcohol treatment order may be appropriate, it may refer the matter to the at Drug Court Division of the Magistrates' Court that or another venue for consideration of the making of such an order, with or without any direction in law. S. 18ZR(6) amended by No. 43/2020 s. 30(7). (6) However, if the offender has a usual place of residence, the County Court may only refer a matter under subsection (5) to the Drug Court Division of the Magistrates' Court at a venue if the offender's usual place of residence is within a postcode area specified, in relation to that venue, by the Minister by notice published in the Government Gazette. (7) Despite anything to the contrary in the **Magistrates' Court Act 1989**, a venue of the Magistrates' Court to which a matter is referred under subsection (5) is the proper venue of that Court in relation to that matter for the purposes of that Act. S. 18ZR(8) amended by Nos 68/2009 s. 97(Sch. item 110.33), 43/2020 s. 30(8)(11). (8) If a matter is referred to the Drug Court Division of the Magistrates' Court under subsection (5) but the Drug Court Division of the Magistrates' Court determines not to make a drug and alcohol treatment order, the Drug Court Division of the Magistrates' Court must remit the matter to the County Court for the making of any order under section 256(2)(a) or section 259(2)(a) of the **Criminal Procedure Act 2009** (as the case requires) which the County Court can make. S. 18ZR(9) amended by Nos 68/2009 s. 97(Sch. item 110.34), 45/2020 s. 30(9)(11). (9) If a matter is referred to the Drug Court Division of the Magistrates' Court under subsection (5) and the Drug Court Division of the Magistrates' Court makes a drug and alcohol treatment order, the order has effect for the purposes of Part 6.1 of Chapter 6 of the **Criminal Procedure Act 2009** as if it were a sentence imposed by the County Court on the hearing of the appeal but for all other purposes has effect as an order of the Drug Court Division of the Magistrates' Court. S. 18ZR(10) inserted by No. 3/2016 s. 57, amended by Nos 43/2020 s. 30(10), 1/2022 s. 81. (10) In this section, a reference to the County Court is to be construed as a reference to the Court of Appeal if the appeal is from the Magistrates' Court or the Drug Court Division of the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder. S. 18ZS inserted by No. 2/2002 s. 5. 18ZS Immunity from prosecution for certain offences (1) A person is not liable to prosecution for any offence comprising the unlawful possession or use of drugs of addiction— S. 18ZS(1)(a) amended by No. 43/2020 s. 31(1). (a) as a result of any admission made in connection with any assessment of the eligibility of the person for the making of a drug and alcohol treatment order; or S. 18ZS(1)(b) amended by No. 43/2020 s. 31(1)(2). (b) as a result of any admission made in connection with the assessment by the Drug Court, or at a case conference convened under section 18ZI(1) by the judicial officer constituting the Drug Court, of the person's progress under a drug and alcohol treatment order. (2) Subsection (1) does not prevent a prosecution for any offence comprising the unlawful possession or use of drugs of addiction if there is evidence, other than the admission or evidence obtained as a result of the admission, to support a charge. (3) The admission, and any evidence obtained as a result of the admission, is not admissible against the person in a prosecution referred to in subsection (2). S. 18ZS(4) inserted by No. 43/2020 s. 31(3). ***judicial officer*** means— (a) for the Drug Court Division of the Magistrates' Court, a magistrate; or (b) for the Drug Court Division of the County Court, a judicial registrar, an associate judge or a judge of the County Court. New s. 18ZT inserted by No. 26/2012 s. 29. 18ZT Order made by Court of Appeal For the purposes of any proceeding under this Subdivision— S. 18ZT(a) amended by No. 43/2020 s. 32. (a) a drug and alcohol treatment order made by the Court of Appeal on an appeal must be taken to have been made by the court from whose decision the appeal was brought; and (b) the provisions about proceedings under this Subdivision apply as if the court from which the appeal was made were the sentencing court. Pt 3 Div. 2 Subdiv. (1D) (Heading and ss 18ZT–18ZZR) inserted by No. 53/2003 s. 5, amended by Nos 97/2005 s. 182(Sch. 4 item 45.1), 52/2008 s. 265, 68/2008 s. 82, 13/2010 s. 51(Sch. item 49.1), repealed by No. 30/2010 s. 11. Pt 3 Div. 2 Subdiv. (2) (Heading and ss 19–26) amended by Nos 41/1993 s. 10(1)(2), 45/1996 s. 18(Sch. 2 items 11.5–11.8), 48/1997 ss 13, 28(2), 10/1999 s. 30, 19/1999 s. 7, 68/2009 s. 97(Sch. items 110.35–110.38), 30/2010 s. 12, 48/2011 s. 18, repealed by No. 65/2011 s. 15. Pt 3 Div. 2 Subdiv. (2A) (Heading and ss 26L–26ZR) inserted by No. 30/2010 s. 14, amended by No. 53/2010 s. 221(Sch. items 10.2–10.5), repealed by No. 48/2011 s. 19. Pt 3 Div. 2 Subdiv. (3) (Heading and ss 27–31) amended by Nos 23/1994 s. 118(Sch. 1 item 51), 48/1997 ss 14(2)–(7), 15, 10/1999 s. 30, 82/2006 ss 4–6, 68/2009 s. 97(Sch. items 110.39–110.43), 30/2010 ss 15, 16, 77/2010 s. 12 (as amended by No. 9/2011 s. 4), 48/2011 s. 20, 65/2011 ss 16–18, 26/2012 s. 30, 32/2013 ss 4, 6, repealed by No. 32/2013 s. 11. Pt 3 Div. 2 Subdiv. (4) (Heading) amended by Nos 48/1997 s. 17(2), 48/2006 s. 42(Sch. item 32.4). Subdivision (4)—Youth justice centre orders and youth residential centre orders S. 32 (Heading) inserted by No. 48/2006 s. 42(Sch. item 32.5).