8. Specialist Courts — Koori Court, Drug Court and Related Divisions¶
Scope and currency
Source: Specialist Court Proforma Answers.docx
Koori Court¶
Eligibility and Transfer to the Koori Court Division: A Model Answer
1. Introduction and Framework The Koori Court Division operates within both the Magistrates' Court and the County Court, as well as the Children's Court of Victoria (Criminal Division). To successfully transfer a matter to the Koori Court Division, the accused must meet strict statutory eligibility criteria relating to their Aboriginality, the nature of the offence, their plea, and their consent.
2. Definition of Aboriginality As a threshold requirement, the accused must be Aboriginal. Section 3(1) of the Magistrates' Court Act 1989 and section 3(1) of the County Court Act 1958 provide an identical tripartite test for Aboriginality. An "Aborigine" is defined as a person who: (a) is descended from an Aborigine or Torres Strait Islander; (b) identifies as an Aborigine or Torres Strait Islander; and © is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community.
3. Jurisdictional Requirements in the Magistrates' Court Under section 4F(1) of the Magistrates' Court Act 1989, the Koori Court Division will only have jurisdiction to deal with a proceeding for an offence if the following criteria are satisfied:
The accused is Aboriginal;
The offence is within the jurisdiction of the Magistrates' Court;
The accused intends to plead guilty, formally pleads guilty, or intends to consent to an adjournment to participate in a diversion program under section 59 of the Criminal Procedure Act 2009; and
The accused consents to the proceeding being dealt with by the Koori Court Division.
A similar mechanism applies for contraventions of sentences imposed by another division of the Magistrates' Court, provided the accused intends to plead guilty, pleads guilty, or intends to consent to a diversion adjournment, and consents to the Koori Court's jurisdiction (section 4EA).
4. Jurisdictional Requirements in the County Court To transfer a proceeding or an appeal to the County Court Koori Court Division, section 4E of the County Court Act 1958 requires that:
The accused is Aboriginal;
The offence is within the jurisdiction of the County Court;
The accused pleads guilty to the offence;
The accused consents to the proceeding being dealt with by the Koori Court Division; and
The Koori Court Division considers that it is appropriate in all the circumstances that the proceeding be dealt with by it.
The County Court Koori Court Division also has jurisdiction to deal with contraventions of sentences (including those imposed by other divisions of the County Court) provided the accused is Aboriginal, the offence is within jurisdiction, the accused pleads guilty, the accused consents, and the Court considers it appropriate (section 4DA). It also has jurisdiction to hear sentence appeals from both the Koori Court Division of the Magistrates' Court and the mainstream Magistrates' Court (section 4D).
5. Excluded Offences The legislation strictly excludes certain offences from being heard in the Koori Court Division in both jurisdictions:
Sexual Offences: The Koori Court cannot hear a proceeding for a sexual offence as defined in section 6B(1) of the Sentencing Act 1991 means an offence to which clause 1 of Schedule 1 applies.
Family Violence: In the Magistrates' Court, offences involving a contravention of a family violence intervention order (or offences arising out of the same conduct) are excluded, unless the matter is at a specific venue gazetted by the Chief Magistrate where the Koori Court Division is expressly authorised to exercise this jurisdiction (section 4FA). The County Court similarly restricts family violence contraventions to specific gazetted venues (section 4EA).
6. Procedural and Sentencing Considerations Once a matter is transferred, practitioners must be aware that the Koori Court Division operates differently from mainstream courts. The Court is mandated to exercise its jurisdiction with as little formality and technicality as the requirements of the legislation and the proper consideration of the matters permit. Furthermore, the Court must ensure proceedings are comprehensible to the accused, the accused's family members, and any members of the Aboriginal community present in court.
During the sentencing procedure, the Koori Court Division may consider oral statements made by an Aboriginal elder or respected person. The Court may inform itself in any way it thinks fit, including considering reports or submissions from a Koori Court officer, a community corrections officer, a health service provider, a victim, or a family member of the offender. Practitioners should note that Part 3.10 of the Evidence Act 2008 does not apply to the Koori Court Division in considering a sentence unless the Court specifically directs otherwise.
Benefits of Koori Court¶
Transferring a matter to the Koori Court Division offers significant procedural, evidentiary, and therapeutic benefits for an Aboriginal accused by promoting greater participation of the Aboriginal community in the sentencing process. As a practitioner, advising a client to transfer their matter into this jurisdiction invokes the following key advantages:
1. Reduced Formality and Increased Comprehension The Koori Court Division is statutorily mandated to exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of the legislation and proper consideration of the matters permit (section 4A(5) of the County Court Act 1958 and section 4D(4) of the Magistrates' Court Act 1989). Furthermore, the Court is required to take steps to ensure proceedings are conducted in a manner that is highly comprehensible to the accused, their family members, and the Aboriginal community present in court (section 4A(6) of the County Court Act 1958 and section 4D(5) of the Magistrates' Court Act 1989).
2. Relaxed Evidentiary Rules on Sentence During the sentencing procedure, the Court is freed from certain technical evidentiary constraints. Specifically, Part 3.10 of the Evidence Act 2008 (privileges) does not apply to the Koori Court Division when considering the sentence to impose, unless the Court expressly directs otherwise (section 4G(6) of the County Court Act 1958 and section 4G(6) of the Magistrates' Court Act 1989). The Court may inform itself in any way it thinks fit, allowing defence to readily draw upon reports, statements, or submissions from Koori Court officers (Aboriginal justice workers), community corrections officers, health service providers, and the offender's family members (section 4G(3) of the County Court Act 1958 and section 4G(3) of the Magistrates' Court Act 1989).
3. Cultural and Therapeutic Sentencing Discretion Crucially, the Koori Court Division is empowered to consider oral statements made directly to it by an appointed Aboriginal elder or respected person (section 4G(2) of the County Court Act 1958 and section 4G(2) of the Magistrates' Court Act 1989). This facilitates the "Koori Court Sentencing Conversation," a therapeutic and culturally grounded dialogue. In this forum, the accused is challenged by Elders to consider the community, cultural, and personal implications of their offending. Active participation in this conversation—where the accused reflects on their life, acknowledges their shame, and demonstrates a willingness to lean on others to heal and reconnect with culture—can act as a profound mitigating factor in the ultimate sentence imposed (Director of Public Prosecutions v Taylor).
Drug Court¶
1. Introduction and Framework The Drug Court Division operates in both the Magistrates’ Court and the County Court. As a specialist jurisdiction, the Drug Court is designed to deal with offenders whose criminality is inextricably linked to drug and alcohol dependency. The primary sentencing disposition unique to this jurisdiction is the Drug and Alcohol Treatment Order (DATO).
2. Jurisdictional Requirements and Transfer To transfer a matter to the Drug Court Division, practitioners must seek an adjournment prior to the accused entering a formal plea. Under section 4AAB of the County Court Act 1958 and section 4B of the Magistrates' Court Act 1989, the court may adjourn the proceeding to the Drug Court if:
It appears the accused might be eligible for a DATO if convicted;
The accused’s usual place of residence is within a specified postcode area gazetted for that Drug Court venue; and
The accused consents to the transfer.
Appeals under Part 6.1 of the Criminal Procedure Act 2009 cannot be adjourned to the Drug Court Division.
3. Eligibility for a Drug and Alcohol Treatment Order (DATO) For the Drug Court to ultimately impose a DATO under section 18Z of the Sentencing Act 1991, the court must be satisfied that a term of immediate imprisonment is the only appropriate sentence. Specifically, the Court must consider that:
In the Magistrates' Court, a sentence of imprisonment is appropriate.
In the County Court, a sentence of imprisonment of no more than 4 years is appropriate.
In either jurisdiction, the Court would not have suspended that sentence in whole or in part.
Excluded Offenders: The Drug Court Division of the County Court cannot make a DATO if the offender is currently subject to a parole order, a Supreme Court sentence, or if they are convicted of certain excluded serious/violent offences (such as those captured by sections 10 to 10AE of the Sentencing Act 1991).
Exactly like the Koori Court, section 18Z(1)(a)(i) of the Sentencing Act 1991 strictly excludes "a sexual offence as defined in section 6B(1)".
Section 18Z(1)(a)(ii) primarily restricts jurisdiction where the current offence involves the infliction of actual bodily harm.
4. Strategic Benefits of the Drug Court Advising a client to enter the Drug Court pathway invokes several key therapeutic and procedural benefits:
Avoidance of Immediate Custody: The most immediate strategic benefit of a DATO is that it allows an offender, who would otherwise be facing a mandatory immediate term of imprisonment, to remain in the community. A DATO consists of two parts: a "custodial part" and a "treatment and supervision part". The custodial part (which has a maximum duration of 2 years in the Magistrates' Court and 4 years in the County Court) is suspended while the treatment and supervision part operates.
Therapeutic Jurisprudence and Reduced Formality: The Drug Court is statutorily mandated to exercise its jurisdiction with as little formality and technicality as the proper consideration of the matters permits. This creates a collaborative rather than purely adversarial environment.
Intensive Case Management: The offender participates in regular case conferences monitored directly by a judicial officer (a Magistrate, or a County Court Judge/Judicial Registrar). This ensures timely interventions and supports addressing the root causes of their offending.
Statutory Rewards System: The Drug Court operates heavily on a behavioural modification model. Under the Sentencing Act 1991, the Drug Court has the express power to confer rewards on the offender for complying with the conditions of their DATO. Crucially, as the ultimate reward for successful rehabilitation, the Drug Court has the power to cancel both the treatment and supervision part and the custodial part of the DATO, effectively clearing the custodial sentence hanging over the offender.
Assessment and Referral Court¶
1. Introduction and Framework The Assessment and Referral Court (ARC) List is a specialist list established within the Magistrates' Court of Victoria under section 4S(1) of the Magistrates' Court Act 1989. It operates therapeutically to address the underlying factors contributing to offending behaviour for clients with cognitive impairments, mental illness, or neurological conditions. The operation and administration of the ARC List is at the direction of the Chief Magistrate, who specifies the venues where it sits and acts.
2. Eligibility and Referral Requirements For a proceeding to be referred to the ARC List, practitioners must satisfy the Court of the strict statutory requirements set out in section 4S(3) of the Magistrates' Court Act 1989. Specifically, the accused must meet the eligibility criteria in section 4T, consent to the proceeding being dealt with in the List, and the Court must consider it appropriate in all the circumstances. Practitioners should note that previous restrictions which excluded certain serious violent and sexual offences from the ARC List under section 4S(3)(a) have been repealed, broadening the scope of offences that may be heard.
To satisfy the threshold eligibility criteria under section 4T, the accused must meet three concurrent limbs:
Diagnostic Criteria: The accused must have one or more of a mental illness, an intellectual disability, an acquired brain injury, autism spectrum disorder, or a neurological impairment (including, but not limited to, dementia) (section 4T(2)).
Functional Criteria: The diagnostic condition must cause a substantially reduced capacity in at least one of the following areas: self-care, self-management, social interaction, or communication (section 4T(3)).
Needs Criteria: The accused would derive benefit from receiving coordinated services in accordance with an individual support plan (section 4T(4)).
In determining whether these criteria are met, the Court must, so far as practicable, have regard to a clinical assessment undertaken by an appropriately qualified professional (section 4S(3A)).
3. Procedure and the Individual Support Plan Once referred, the Court may adjourn the proceeding for up to 12 months before taking a formal plea to allow for a clinical assessment and the preparation of an individual support plan (section 4V(1), (4)). On the return date, the Court must take a formal plea from the accused before approving the individual support plan (section 4V(5)). If at any stage the accused pleads not guilty, the matter must be transferred out of the ARC List to a contested hearing in the mainstream Magistrates' Court (section 4X(2)).
4. Strategic and Therapeutic Benefits of the ARC List Advising a client to enter the ARC List pathway offers significant therapeutic, procedural, and dispositional advantages:
Reduced Formality and Active Case Management: Under section 4U(3), the Court is mandated to exercise its jurisdiction with as little formality and technicality, and with as much expedition, as proper consideration permits. The Court actively monitors the accused by convening regular hearings to receive progress reports and can adjust the individual support plan to respond to the accused's ongoing needs (section 4U(2)).
Discharge Without a Finding of Guilt: The most profound benefit is found in section 4Y(2), which empowers the Court to discharge the accused without any finding of guilt if they complete or participate in their individual support plan to the satisfaction of the Court. This discharge operates as an absolute defence to a later charge for the same or a similar offence arising out of the same circumstances (section 4Y(4)). Furthermore, the mere fact of participating in the plan cannot be treated as a finding of guilt (section 4Y(3)).
Guaranteed Mitigation and Protection from "Failure": If an accused participates in the plan to the satisfaction of the Court but is subsequently found guilty, the Court is statutorily required to take that participation into account as a mitigating factor on sentence (section 4Y(5)). Crucially, the ARC List provides a "safe" therapeutic environment: if the accused fails to participate in the plan to the satisfaction of the Court and is subsequently found guilty of the charge, the Court is expressly prohibited from taking that failure into account when sentencing (section 4Y(6)).