Error in construction of offender’s eligibility for proceedings to be adjourned to the Drug Court Division of the Magistrates’ Court
Text, context and purpose support limited enquiry to establish eligibility for drug and alcohol treatment order
Quick Take
1Section 4B of the Magistrates' Court Act 1989 (Vic) imposes only a high-level filtering function: the Magistrate's task is confined to assessing whether the objective and factual eligibility criteria in s 18Z of the Sentencing Act 1991 are met (guilty plea, imprisonable non-excluded offence, drug/alcohol dependency contributing to offending, appropriateness of immediate imprisonment, absence of disqualifying orders), and does not extend to forming a concluded view on the appropriate final sentence or whether a DATO is viable 'in all the circumstances'.
2The determination of whether a DATO is appropriate 'in all the circumstances' under s 18Z(3)(a) of the Sentencing Act is exclusively the function of the Drug Court Division; a Magistrate exercising the s 4B gateway power who undertakes that assessment usurps the Drug Court's role and exceeds the scope of the statutory power.
3The Drug Court's resourcing and capacity, an offender's prior non-compliance with community-based orders (given s 18Z(4) expressly provides these are no bar), and characterisation of a DATO as a 'get out of jail free card' are not relevant considerations in the exercise of the s 4B discretion.
