Handbook for Judicial Officers — Therapeutic jurisprudence and the trauma-informed court

The Drug Court of NSW has many opportunities to conduct a successful trauma-informed court. Our level of contact with participant offenders, our co-operative arrangements with treatment partners, and our ability to share information between members of the team, all combine to ensure the judge knows so much more about the participants than a judge in any traditional court case. A Drug Court judge, after imposing an initial sentence, can then seek to establish a therapeutic relationship with the participant, aided by a broad range of services and support.

The Drug Court has recently intensified efforts to garner as much relevant information as possible from the beginning of the program rather than finding out about mitigating circumstances at the end. We have information drawn from Health Services and Community Corrections, together with the defence’s instructions. There is then an opportunity to use that information to guide the interaction with the participant.

A young Aboriginal woman recently started the program. I was informed about the chaotic circumstances in which she was raised including drug use and violence, removal from her parents at age seven, and an interrupted and limited schooling. She was sexually assaulted when she was four years old and then again at 10.

At her first “report back” to the court this week, the court was told that she had failed to provide a urine sample, which is a breach of the program. She had been unable to provide the sample in front of a male nurse. She had however provided urine samples for her next two tests. The prior information of her trauma background could then guide the court’s response, so she was praised about the successful provision of two samples, and we talked about seeing the nurse as a medical professional, not a man or a woman. We even shared a smile about the Drug Court being a bit like going into hospital — you leave your dignity at the front door.

Knowledge of the participants makes a significant difference as it broadens judicial perception and engagement with them. Another example is a physically imposing man in his 40s whose appearance is matched by a fierce and dogmatic style of interaction. Any conversation with him can quickly deteriorate into being combative, which becomes tiring each week. However, because he grew up with, and still lives with, his vitriolic and alcoholic mother, and there has never been any love or nurturing in his life, it is far easier to speak with him each week because of this knowledge. Our interactions are generally quite satisfactory; he is progressing well and I am sure I deal with him more gently and successfully because I know about his miserable personal life.

The research tells us that every positive treatment episode is valuable, and that even a short period of engagement in treatment can lead to improvements in both physical and mental health. It is surprisingly common for drug-addicted offenders to come to the Drug Court without having had the benefit of any previous treatment in the community.

Even after many years in the Drug Court, I remain surprised at the level of honest and committed engagement by the participants with the program. Of course, many start the program with the obvious and sensible goal of getting out of prison, and have no particular intention to give up drugs and crime, or perhaps any belief that it would be possible, after using for 30 years, to do so. At graduation from Drug Court, I have often been told, in conspiratorial tones, that “I just wanted to get out of gaol, but I found the program good, and so I decided to stay”.

Interactions with the judge and court may be quite guarded and closed initially. This is understandable, and perhaps quite a sensible attitude, from someone who feels let down, or even significantly damaged, by others who have been in a position of authority to her or him. So while it might appear unusual that I always ask after “Blue” the dog, or tease another participant about the failure of his Rugby League team to fire on the weekend (an avenue now lost!), that discussion about the dog or the football is one they can willingly engage in. So part of “Karen’s”^[4] report back is always about how Blue is progressing towards being certified as an Assistance Dog for her anxiety. Throughout that engagement we are building trust with a figure in authority, perhaps for the first time.

We may start with report backs which are very difficult for the participant to endure, to the situation whereby participants are reluctant to only see the judge once a week when their progress on the program now warrants fortnightly meetings.

Judge Hora writes about “six key principles” of which one principle is “empowerment, voice and choice”.^[5] A new expectation that they take charge of their lives can be quite confronting to Drug Court participants and achieving a level of empowerment can cause some chaos in their lives.

For example, it can be the case that they have, perhaps for many years, blamed all manner of agencies and others for their plight. So the police, the courts, parole authority and the partner are why so many things have gone wrong. Suddenly there is a judge saying, “What more can we do? You have accommodation now, you are working well with your counsellor, you enjoy working at Parramatta Mission. You told me you shouldn’t go back into Liverpool. Are we missing something?” And the only truthful answer is “nothing”, because they have to take control and responsibility. From the bench, you can actually see how disconcerting it is to be faced with the realisation that there is no-one else to blame today.

The second stage of that realisation is seeing clearly, perhaps for the first time, how destructive their partner, parents or siblings are. A participant recently was trying hard to succeed and was very motivated to become drug free so he and his partner could seek the restoration of their young child to their care. He was shocked to find that the child’s mother had no intention of giving up drugs, or taking up the assistance we could arrange for her. He was shocked to now see that there was no real substance to their relationship at all, apart from using drugs and the excitement of committing crimes together to fund their habits.

Being informed about the trauma our clientele have suffered has a profound effect upon our work at the Drug Court. The young woman described above may well struggle to do the program, but I will always see those struggles through the prism of her appalling childhood. She may not turn up for appointments, and she might not be home by 7 pm. I will however be able to judge those breaches armed with the background knowledge of a childhood marred by trauma and dislocation. She is now both a “project” and a challenge and that makes my work a privilege to undertake.