Alternative Resolutions for Adult Offenders
Whilst the majority of criminal charges are dealt with through the traditional criminal court system, there are occasions where we can resolve proceedings outside of the courts. The decision to refer a matter to an alternative resolution can be made before a person is charged, but can also be considered by the Prosecution after court proceedings have been commenced.
The duty of the Police to consider all options
Once a police officer has:
- investigated a complaint;
- decided that an offence has been committed;
- confirmed that they can prove the elements of the offence; and
- they have determined who committed the offence,
they must consider what action they are going to take. For example, should they charge the person and place them before the Courts or is there another, more suitable, option given the circumstances of that particular case?
The Police have several options available to them including:
- Taking no formal action;
- Issuing a “caution”;
- Referring the matter to Adult Restorative Justice Conferencing (“ARJC” previously known as “justice mediation”);
- Offering a drug diversion (if applicable);
- Issuing an infringement notice; or
- Charging the defendant and placing their matter before the Court.
What is an adult caution?
An adult caution is delivered as an alternative to charging someone and placing the matter before the courts. It is used for cases that are too serious to warrant a verbal warning only, where there is evidence of an offence but where the Police feel the matter could be appropriately dealt with outside of the court process.
You cannot receive an adult caution for every type of offence. There are set criteria that set out the types of offences that can be dealt with through this system. The Police will then need to assess whether the person alleged to have committed the crime is personally eligible. For example, if they deny committing the offence, they are ineligible.
The Police will also need to consider a range of other factors such as the seriousness of the offence, the person’s criminal history, etc.
If they decide to do so, the Police can then arrange to meet with the offender and formally issue an adult caution as a resolution of the complaint. View more information about adult cautions.
What is ARJC?
Adult Restorative Justice Conferencing (“ARJC” also referred to as “justice mediation”) is a process that can be beneficial to all parties involved. It allows for a meeting between an alleged offender and complainant/victim to discuss the impact of the actions constituting the offending and to reach an agreement as to reparation for the harm caused.
The defendant has the opportunity to apologise for their conduct and to accept responsibility for their actions, whilst the complainant/ victim has an opportunity to explain how the offending impacted them and to hold the defendant accountable, setting out the steps needed to make amends.
A matter can only be referred to justice mediation if the complainant and defendant are willing participants, the police/prosecution agree to the referral and the matter is deemed suitable by the mediator.
In assessing the suitability of the matter, the mediator will consider the nature of the offence, the police file and the defendant’s criminal history. It is, ultimately a matter entirely for the mediator’s discretion.
There are several dispute resolution branches set up across Queensland to provide ARJC services, including the Gold Coast, Brisbane, Townsville and Cairns (as well as Mornington Island /Junkuri Laka and Aurukun).
A matter can be referred to ARJC by the Police (as an alternative to charging a person and placing their matter before the courts) or by the prosecution (after court proceedings have already been commenced). If the case is successfully resolved by a suitable agreement between the parties, that agreement usually involves the complaint/charge being discontinued.
Again, there are criteria that exclude certain offences being dealt with through this process and similarly, the eligibility criteria include reviewing matters such as a person’s willingness to participate and they are subject to certain penalties already (for example, a person currently serving a term of imprisonment or subject to a community-based order will not be eligible).
If the matter cannot be resolved through the ARJC process, the matter can be referred back to the Courts to be dealt with through the traditional court system or a person can be charged or otherwise dealt with by the Police, given the nature of the particular case.
What is drug diversion?
Where a person is said to have committed a minor drug offence, the Police may offer ‘drug diversion’ instead of issuing the person a Notice to Appear in court. The Court also has the power to order drug diversion as a penalty for a minor drug offence.
If a person is dealt with by Police for a minor drug offence (e.g. possession of a small amount of cannabis for personal use) and provided they meet certain criteria (e.g. they have not previously been sentenced to a term of imprisonment for a drug offence), the police officer could require the person to complete a drug diversion program rather than charging them and requiring that they attend court. Usually, the drug diversion course takes up to two hours to complete.
Even if a person has been charged with a minor drug offence (for example, if they refused to speak to Police at all about the items found in their possession), the Court can consider imposing a good behaviour bond conditioned that they must attend drug diversion as a penalty for the offence.
There are drug and alcohol diversion programs open to adult offenders, including DAAR (the drug and alcohol assessment referral program). The course aims to educate offenders and reduce the risk of further offending.
Infringement Notices
Before a police officer charges a person with an offence and issues the person paperwork requiring them to attend court, the officer is required to consider whether there is a more appropriate means of resolving the matter, including by way of an infringement notice.
There are a number of minor offences which can be dealt with by the Courts, that can also be resolved by a ticket/ infringement notice.
Whilst ideally a police officer will consider this issue at the time and issue a person an infringement notice at that point, sometimes as lawyers we will liaise with Prosecution to request that they discontinue court proceedings and issue a ticket instead. The State Penalties Enforcement Regulation 2014 sets out a number of offences that can be dealt with in Queensland by way of an infringement notice and the fine that will be imposed (in penalty units). For example, the offence of public nuisance under the Summary Offences Act 2005 (Qld) will carry a fine of 3 penalty units (over $450) if it involves abusive, indecent, obscene or offensive language and is committed within, or in the vicinity of, licensed premises.
There can be significant benefits to dealing with a matter by way of an infringement notice instead of through the court process. However, if you are considering contesting any ticket issued by Police, be sure to call our office to get some advice.
What are the benefits of such a resolution?
The benefits of an alternative resolution will depend on each individual case, the type of resolution sought and the success in convincing police or prosecution to consider such a resolution. However, generally speaking, alternative resolutions can involve the charge being withdrawn or discontinued after a less formal finalisation of the matter.
It may mean that the matter is not something you have to disclose. It may not show up on your criminal history. It could reduce the risk of reoffending and it could offer closure and reparation for the victim of a crime. Even if the alternate resolution does not involve your charge being dropped, positive engagement in the process is likely to assist in reducing the penalty imposed by the Court.
What matters can be resolved outside of Court?
Depending on the type of resolution being considered, there are certain types of offences that can or cannot be dealt with through an alternative resolution outlined above.
Generally speaking, the mores serious the charge, the less likely your matter will avoid the court system. However, it is important to speak to a lawyer who practices in and is experienced in criminal law to:
- explore whether there are any alternative resolutions available in your case;
- provide advice about the pros and cons of such a resolution;
- assist you in liaising with Police or Prosecutions to encourage them to consider an alternative resolution; and
- help guide you through any alternative resolution to ensure you get the best possible outcome.
I have already been charged. Is it too late?
No, whilst it would be ideal for the police to consider an alternative resolution before commencing court proceedings, the reality is that even if your matter is already before the Courts, your lawyers can enter into case conferencing with the prosecution and make submissions to their office to request that your matter be dealt with by way of an alternative resolution. Whether that involves referring the matter to justice mediation or issuing a ticket and then discontinuing the charge on payment of that fine.
Contact us for more information
If you have been charged, are facing charges or would simply like more information about alternative resolutions to court proceedings, contact our criminal defence lawyers to discuss your individual circumstances.