R v Gordon [2023] NSWDRGC 1

Drug Court New South Wales

Medium Neutral Citation: R v Gordon [2023] NSWDRGC 1 Hearing dates: 5 June 2023 19 June 2023 Date of orders: 19 June 2023 Decision date: 19 June 2023 Before: Judge Keogh Decision: Address meets the place of residence criteria for the purpose of eligibility for the Drug Court program Legislation Cited: Drug Court Act 1998 (NSW) Drug Court Regulation 2020 (NSW) Cases Cited: Bull v Attorney general of NSW [1913] 17 CLR 356 R v Duggan [2001] NSWDRGC 5 R v Uong [2001] NSWDRGC 12 Texts Cited: Equality Before the Law Bench Book (22nd release, 2022, Judicial Commission of New South Wales) Macquarie Dictionary, 8th ed (2020) Category: Procedural rulings Parties: Regina (Crown) Stephen Gordon (Offender) Representation: J Doohan, Director of Public Prosecutions (Crown) C McKay, instructed by the Legal Aid Commission (Offender) N Christian (Clinical Nurse Consultant) S Duff (Community Corrections Co-ordinator) File Number(s): 2023/00003026

JUDGMENT 1. Mr Gordon wants to be a participant in the Drug Court program. 2. At issue is whether he meets the criteria of eligibility specifically whether his usual place of residence is within the designated local government area of the Dubbo region. 3. The Drug Court Act 1998 (NSW) in regard to eligibility is as follows. 4. First, section 3 (1) says the objects of the Act are: (a) to reduce the drug dependency of eligible persons (b) to promote the reintegration of such drug dependent persons into the community (c) reduce the need to such drug dependent persons to resort to criminal activity to support their drug use 1. Second, section 5 provides the definition of eligible person: (1) A person is an eligible person if (a) They are charged with an offence mentioned in subsection (2) (b) The facts in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted be required to serve a sentence of full-time imprisonment and (c) The person has pleaded guilty or indicated that he or she intends to do so and (d) The person appears to be dependent on a prohibited drug and (e) The person satisfies such other criteria as are prescribed by the regulation 1. And thirdly, Drug Court Regulation 2020 (NSW) section 4 provides for the purposes of eligibility pursuant to section 5: "… a person's usual place of residence must be within the Dubbo regional local government area." 1. A participant's usual place of residence has been discussed in three published decisions of the Drug Court. Those decisions were limited to the particular facts before the court on each occasion and offer guidance in regard to an assessment of whether the criteria are satisfied in this case. 2. In the case of R v Uong [2001] NSWDRGC 12, Her Honour Senior Judge Murrell SC at [5] accepted the usual place of residence is: "…the place the person chooses to spend most of their time during the daytime, in terms of sleeping requirements, to eat and to keep most of their belongings, i.e., the person's home base." 1. Mr Uong had obtained employment outside the Drug Court local government catchment areas. His family home for over a decade, was within area, however, to enable his employment to continue he had moved to an area closer to his employment outside the drug court catchment area. He planned to reside with his family in area on the weekends. He was held to be ineligible for the program. It was an unfortunate result, but in the particular circumstances of his entry and commencement on the program, he could not be supervised in the intensive manner required. 2. His Honour Judge Milson in R v Duggan [2001] NSWDRGC 5 at [10] determined the time when a person's usual place of residence should be determined ought to mean the time immediately before the person came into custody, which is: "…immediately before they reached the status where they had no choice as to where they were living." 1. To hold otherwise would mean everyone who went into custody, i.e. prisoners who went into corrections custody available at the time at Silverwater, Parramatta, Emu Plains and Parklea, would all be eligible. 2. It is the case that participation in the program was and still is restricted, it has limited application and it is not open to potentially the entire pool of all prisoners awaiting sentence in New South Wales. 3. His Honour Senior Drug Court Judge Dive in the case of Partridge (R v Partridge [2012] NSWDRC 2) at [21] considered the implications of the restrictions in regard to eligibility: "the decision in Duggan is a very sensible one… if every prisoner from across the state who compulsorily lived in a gaol within the area was eligible, the resources of the court would be stretched beyond limits, as the program would, as they progressed on the program, need to try and provide resources in the community to treat such offenders within their far-flung community addresses." 1. Clearly, the availability of a program is dependent on the residence of the participant because the Drug Court has limited services. Its services, under the umbrella of the treatment plan devised for each participant involve intensive supervision, including not only attendance at court for regular report backs but also attendance for drug testing and being available for supervision which may include random checks on residences to ensure compliance with curfews and other conditions. The program may also involve assistance in obtaining employment and then checking on attendance at the place of employment and the progress of the participant. The residence requirement is linked to the participant's availability for counselling or other programs arranged for the benefit of the participant including medical treatment and the receipt of pharmacological therapy. 2. Unfortunately, this intensive supervision is not available state-wide, it is only available in the local government areas listed in the Drug Court regulations. 3. A participant must be available to avail himself or herself of the full benefits of the program and also so the Drug Court team can ensure the intensive program devised for each individual participant can be complied with. 4. Temporary location within the local government area may not allow for proper engagement with the program and so the regulations require the usual place of residence of a participant to be within the local government as designated in the regulations. 5. Additionally, as the facilities of the Drug Court are finite, the limitation is imposed to ensure the intensive supervision offered by the Drug Court is effective. 6. Mr Partridge lived outside the local government area immediately prior to his incarceration. However, when he was arrested for the offences referred to the Drug Court, he lived within the geographical limits of the Drug Court. He was living outside area by virtue of a bail undertaking which required him to live at an address other than where his usual place of residence had been. 7. His Honour said at [24] he was satisfied for the purposes of Section 5 that his usual place of residence: "…at one crucial and relevant point in time i.e., when he was arrested for the crimes referred to the court. Was an address in area. Indeed, was it not for the grant of conditional bail…there would have been no doubt he was eligible in terms of his residential address" 1. His Honour went on to say at [25]: "To determine otherwise would produce a remarkable result whereby for the period… until he was granted bail, he was an eligible offender, and then, by virtue of the good fortune of bail and the ensuing court mandate, he managed to lose that status. The fact that he was an eligible offender did not… disappear with the intervening grant of bail." 1. Turning back to the legislation, it contains no definition of usual place of residence. 2. The Macquarie Dictionary, 8th ed (2020), when determining the usual place of abode, notes usual means current, ordinary, customary and abode means habitual residence, place of habitation, house or home. 3. His Honour Judge Dive noted at [20] that the clientele of the Drug Court challenges the ordinary notions of many community norms: "Assumptions are easily made as to people having a home, and of sleeping at a home address. However, the clientele of this court has been found to be sleeping in parks, under bridges or in cars (so do not have any place of "residence" by any ordinary definition). They may not even sleep anywhere at all for days on end when consuming large amounts of amphetamines, and may be in many different locations in the days leading up to custody. So, both the notion of residence and even sleeping somewhere can be challenged." 1. This Court is always mindful that the Drug Court legislation is beneficial legislation. 2. The concept of legislation having a beneficial purpose has been explained in the following way in Chandler v OPP [2001] 113A Crim R 196 and Bull v Attorney general of NSW [1913] 17 CLR 356: "The correct way of reading legislation where there is such an ambiguity is to construe them generously….not that the true signification of the provision should be strained or exceeded, but it should be construed to give the fullest relief with which the fair meaning of its language will allow" 1. Finally, the Equality Before the Law Bench Book (22nd release, 2022, Judicial Commission of New South Wales) provides assistance in regard to the indigenous community and informs this Court of the more collective and cooperative nature of aboriginal culture and that the concept of family consists of the extended family often including distant family members, it also notes the very strong sense of relationship to the land of a person's ancestors which aboriginal people have and the importance of this in regard to identity.