Published by Geoff Harrison | 16 October 2023
The Magistrates Early Referral Into Treatment (MERIT) is a pre-plea diversionary program for defendants charged with drug or alcohol related offences in the Local Court. The criteria for referral into MERIT is set out in clause 12.4 of Local Court Practice Note Crim 1. As per clause 12.8(b) of the Practice Note, "On sentence, the successful completion of the MERIT program is a matter of some weight to be taken into account in the defendant's favour".
PART D – DIVERSIONARY PROGRAMS
12.1 Description, objects and availability
(a) The MERIT program is a pre plea diversion program for defendants with drug problems conducted in the Local Court of NSW. At selected locations the MERIT program includes Alcohol MERIT for persons charged with offences before the Local Court who have alcohol problems.
(b) The program provides for the early referral for assessment of arrested persons who are eligible for bail (or do not require bail consideration) and who are motivated and volunteer to engage in treatment and rehabilitation for their drug use problem.
(c) The program brings together the health, justice and law enforcement systems with the focus on the reduction of criminally offending behaviour associated with drug use.
(d) The successful engagement in the MERIT program can be taken into account in sentence proceedings.
(e) The MERIT program is available at over 50 Local Court locations across New South Wales. Additional locations may be added from time to time. Those wishing to make a referral to the program should contact their nearest Local Court registry for information as to whether the MERIT program is available at a particular location.
12.2 Referrals to the MERIT program
(a) Referrals for assessment into the program may come from one of the following sources:
(i) on apprehension by the Police who may refer a defendant for assessment into the program;
(ii) at the commencement of proceedings, by:
• the defendant;
• the defendant’s lawyer;
• the presiding Magistrate; or
• any other person (such as family/friend, health professional, probation and parole officer).
12.3 Preliminary considerations for entry into the MERIT program
(a) The MERIT program is designed as a pre-plea scheme to encourage referral for assessment at an early stage of the court process and entry into the program is not dependant on the person’s guilt or innocence.
(b) Notwithstanding paragraph 12.3(a) above, a plea may be entered at any time from the person’s first appearance before the court until the conclusion of the program.
12.4 Criteria for eligibility to participate in the MERIT program
(a) To be eligible to participate in the MERIT program the defendant must meet the following criteria:
(i) The defendant must be an adult;
(ii) The offences should not involve strictly indictable offences or sexual offences and the defendant should not have like offences pending before a Court.
(iii) The defendant must be suspected of using drugs or have a history of drug use
(iv) The defendant must be eligible for bail and suitable for release on bail or not require bail consideration
(v) The defendant must voluntarily agree to participate
12.5 General procedure
(a) If considered eligible to participate, the defendant should be referred to the MERIT assessment team attached to the Court for the relevant assessment to be undertaken to ensure that the defendant is suitable for the program. The Court proceedings should be adjourned for a short period to allow that assessment to occur.
(b) As part of the assessment, the MERIT case worker will assess the nature of the defendant’s drug use and other associated problems.
(c) The case worker is to assess the defendant against the criteria for suitability for entry to the program and then formulate a proposed treatment plan for the defendant to undertake and prepare a report for the Court.
(d) If the defendant is considered suitable for the MERIT program, the Magistrate may approve placement of the defendant onto the program.
(e) If the defendant is considered not suitable for the program, the defendant will be asked to enter a plea and the matter will proceed in the usual way.
(a) Once the Magistrate formally approves the placement of the defendant on the MERIT program, the treatment plan as devised by the MERIT case worker, if it has not already commenced, will be commenced.
(b) The determination of an appropriate treatment module is a matter solely within the discretion of the MERIT case worker. Their trained role is to identify the needs, risks, long and short term goals of the participant and then to oversee the provision of available treatment services in the best interests of that participant. Examples of the drug treatment programs available include:
(i) medically supervised and home based detoxification;
(ii) methadone and other pharmacotherapies such as naltrexone and buprenophine;
(iii) residential rehabilitation;
(iv) individual and group counselling and psychiatric treatment.
(c) The MERIT program is generally planned as a 12 week intensive program. It may be extended in special circumstances with the agreement of the Magistrate, the MERIT case worker and the defendant.
(d) During the treatment phase the Court effectively case manages the process. Once accepted into the MERIT Program, the defendant is required to return to Court at such intervals as determined by the Magistrate usually on the recommendation of the MERIT Team. At each adjournment, an update report is provided and the defendant required to attend unless excused by the Court with the concurrence of the MERIT Team. At the conclusion of the program a final report is provided by the MERIT team.
(a) Should the defendant fail the program despite sufficient opportunities to comply with the directions of the MERIT Team, the MERIT Team must, as soon as possible, notify the Court. The defendant’s continuation on the program is a matter for Magisterial discretion. If the defendant is removed from the program by the Magistrate, or withdraws voluntarily at any time, the matter should be relisted as soon as possible for normal judicial management.
(b) While minor issues of non-compliance with the agreed treatment plan need not necessarily be actioned, reference to such conduct should appear in the interim or final reports.
12.8 Conclusion of MERIT program
(a) At the conclusion of the program, the final report will set out the achievements or otherwise of the participant under the program. At that time, the defendant will be asked (if it has not already happened) to enter a plea. The case will then proceed through the normal justice process.
(b) On sentence, the successful completion of the MERIT program is a matter of some weight to be taken into account in the defendant’s favour. At the same time, as the MERIT program is a voluntary opt in program, its unsuccessful completion should not, on sentence, attract any additional penalty.
(c) The final sentencing outcome should be formally communicated by the Court to the MERIT Team for their recording purposes.