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. The Evidence Before the Court 1. Turning to Mr Gordon's circumstances, the evidence establishes the following: 1. At the time of the commission of the referred offences in 2020 Mr Gordon was living in Dubbo. 2. Mr Gordon referred to his parents address at Brewarrina as home. 3. Mr Gordon in his most recent application for bail in December 2022, provided an affidavit to court in which he referred to him residing at and being employed at Brewarrina. A reference was provided from an employer at Brewarrina. (He was unsuccessful in obtaining bail) 4. Mr Gordon does not own any residential property or hold a lease in regard to any residential property. 5. I understand Mr Gordon does not have a tax identification number for the purposes of assessment of tax. 6. Mr Gordon does receive a Centrelink payment which is paid to his mother. She lives in Brewarrina. He receives the benefit of this payment through utilising a phone account or mobile phone. It is unclear how this is done as I understood from Mr Gordon that he does not own a phone. 7. Mr Gordon has lived at many addresses, in Sydney, Dubbo and Brewarrina. 8. Mr Gordon has appeared in many courts namely Byron Bay, Bourke, Brewarrina, Dubbo, Walgett, Coonamble, Mount Druitt, Campbelltown and Narromine. 9. His licence records his address at Brewarrina as his registered address. 10. He has a home available for him in Dubbo. This is at 18 Wheelers Lane, Dubbo and is the address of his grandmother. An affidavit was provided to the court from his sister that he has on occasion lived at that address. 11. Mr Gordon identifies as a Wiradjuri man but also as Weilan. His mother is from Dubbo which is traditionally Wiradjuri country. His father is from Brewarrina, and I understand identifies as Weilan. Mr Gordon's family lives near or within the area previously occupied by a mission which for many aboriginal people disrupted significant ties to their ancestral lands. 12. Mr Gordon expressed his desire, under oath to address his years of drug abuse by committing to the Drug Court program 1. Turning to each of these matters I note the following. 2. As to the first point, if the case of Partridge was held to bind this Court to the only crucial and relevant time to assess the usual place of abode of a participant was the time when he or she committed the referred offences, a person could participate in the program who had no meaningful connection at all with the area in which the drug court operates at the time of his or her application. 3. As to the second point, many people in the wider community continue to refer to the home where their mother and or father reside or the home they grew up in as "home" and this attitude alone cannot be determinative of assessing someone's usual place of residence. 4. As to point three I accept at the time Mr Gordon swore his affidavit he had a residence that could be referred to as his usual place of abode in Brewarrina. He had employment which also provided some significant ties to the Brewarrina area. His employment as a shearer was not a permanent position. It is traditionally seasonal work and frequently itinerant by nature. A local farmer in the Brewarrina area attesting to his workmanship and reliability does not tie him permanently to Brewarrina. It would, however, provide a level of assurance of his ties to the community for a determination in regard to bail. 5. Turning to point 4. Mr Gordon is in a position, not uncommon amongst indigenous people, in that he does not own real property or hold a lease, and this is not determinative of his links or lack of links to a place or community. 6. Turning to point 5 and his official links or governmental links to the local community. It is not surprising that he does not have an ABN or Tax identification number as his employment has been of an itinerant nature. 7. Turning to point 6. I am unsure what to make of this information as it remained confused and unclear. Mr Gordon apparently does not have a phone and so it is unclear how he would access the funds his mother in effect controls. or rather receives on his behalf. It is the case that he does not have a bank account into which his Centrelink payments are made. This is consistent to an extent to the itinerant nature of his life in regard to residence and employment. It does not bind him permanently to any particular area in particular it does not bind him permanently to Brewarrina 8. Turning to point 7 and 8. Mr Gordon who is now 37, has over the years resided, visited and offended in many different parts of the state. This information does not bind him therefore permanently to Brewarrina or provide any evidence that Dubbo does not provide any permanence in regard to his residential situation. 9. As to point 9, current licence records reveal his registered address is an address at Brewarrina. It is also apparent that when he did reside in Dubbo his address for the purpose of his drivers' licences was not changed from Brewarrina to Dubbo. This alone, although a relevant consideration, is not determinative of his of usual place of abode. 10. Point 10 establishes that the address at Wheelers Lane is available to the applicant not just as a place he can stay but is also a place that could fit the category of usual place of abode and has been utilised as such in the past. It establishes that this is not just an address within the local government area of Dubbo but is a place where his grandmother and sister and nieces and nephews reside and, in that respect, he would be living with his kin, within the bounds of his immediate family. 11. As to point 11, Mr Gordon identifies as Wiradjuri man and would be living in the land traditionally associated with his Wiradjuri heritage if he resided in Dubbo. The fact that he also identifies as Weilan does not deprive him of identifying his ties to Dubbo and the Dubbo area being part of his country and therefore of him having a very close community connection to the Dubbo local government area. 12. In many respects Mr Gordon is in the lucky position of having strong and meaningful ties to two communities. What is important is that his connection to Dubbo allows for the intensive supervision that program participation requires. 13. In addition, by application of policy 12 of the Drug Court this Court is committed to providing additional access to its program to assist in addressing the overrepresentation of aboriginal persons in custody. 14. This does not override the necessity to meet the eligibility requirement, but it does address the beneficial nature of the legislation. 15. In all the circumstances I am satisfied the address at Dubbo provided by Mr Gordon meets the usual place of residence criteria for the purpose of his eligibility for the Drug Court program. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2023