Drug Court of New South Wales CITATION : R v Cook [2001] NSWDRGC 9 Regina PARTIES : -v- COOK, Michael Steven FILE NUMBER(S) : 0132 of 2001 CORAM: Her Honour Senior Judge Gay Murrell SC CATCHWORDS: :- Drug Court Act 1998 - section 5 - "an offence involving violent conduct" - s7(2) discretion - antecedents LEGISLATION CITED: Drug Court Act 1998 (NSW) Crimes Act 1900 (NSW) CASES CITED: Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196; DPP v Ebsworth [2001] NSWCA 318 DATES OF HEARING: 26/09/2001 and 04/10/2001 DATE OF JUDGMENT: 4 October 2001 Regina - R. Sahfiq, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - S. Healy, Legal Aid Commission (NSW) JUDGMENT: 1. The Crown argues, as a preliminary issue, that the offender is not an eligible person within the meaning of section 5 of the Drug Court Act 1998. Alternatively, the Crown argues that, in the exercise of its discretion, the Court ought not to sentence the offender and place him on a Drug Court program under s7 of the Act. 2. The offender has been referred to the Court in relation to a number of offences, four of which are of significance. The four offences in question are as follows. (1) On 13 June 2000 at Blacktown the offender did break and enter the office building of Senior Tools Pty Limited with intent to commit a felony, i.e. to steal, in circumstances of aggravation, i.e. immediately after the break, enter and steal, the offender was armed with an offensive weapon, a hunting style knife approximately 25 centimetres in length (s113(2) of the Crimes Act 1900). (2) On 21 July 2000 at Fairfield the offender did rob Tony Papallo and Hasneem Akbar of $653 and one lady's purse containing credit cards and immediately after the robbery used corporal violence on Tony Papallo (s95(1)). (3) On 21 July 2000 at Fairfield the offender assaulted Tony Papallo (s61). (4) On 21 July 2000 at Fairfield the offender used an offensive weapon, a large pocket knife with intent to prevent his lawful apprehension (s33B(a)). 3. As to the events of 13 June, it is alleged that the offender telephoned the victim. Subsequently, he entered her office in her absence by smashing a front door. He then committed a theft. The victim was notified by a witness that somebody was behaving strangely in the vicinity. The victim, with two children and another adult, attended the scene and saw the offender in her office. The offender was told to wait for police. He produced a hunting knife with a 25 centimetre blade. He said "Don't do anything stupid" and referred to the victim by name. The victim became very fearful. The offender ran off. The offender denies threatening anyone with the knife but admits producing the knife. He says that he did not intend to hurt anyone. 4. In relation to the events of 21 July, it is asserted that the offender went into a store and removed cash from a till and the victim's wallet, which was in the vicinity. The victim confronted the offender, who was then chased out of the store by the victim and another person. When the offender was about to be apprehended, he produced a large pocket knife with a 20 centimetre blade and said "I have a knife". He said in evidence that the purpose of that action was to scare his pursuers and allow him to run off. Later, the knife was located on the offender and he admitted to police that he had stopped and pulled the knife out in order to halt the chase. He said in evidence that all he had on his mind at that time was obtaining drugs. 5. The prosecution contends that the offender is not an eligible person within the meaning of s5 because he has been charged with "an offence involving violent conduct". Both parties accept that the present state of the law in relation to the expression "offence involving violent conduct" calls upon the Court to examine the elements of the relevant offence rather than the particular conduct upon which reliance is placed: Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196 and DPP v Ebsworth [2001] NSWCA 318. 6. In Ebsworth, the offender had been charged, pursuant to s97(1) of the Crimes Act 1900, with robbing victims "whilst armed with an offensive weapon, to wit a baseball bat". The leading judgment was that of Meagher JA. At paragraph 20 of the judgment his Honour said: "In the present case if one looks at the charge it is implicit, as I have said, from the verb "to rob" and the accusation of an offensive weapon that violence was necessarily involved. Those two elements together constitute violent conduct." 7. In paragraph 3, Mason ACJ, who agreed with Meagher JA's reasons, said that the language "an offence involving violent conduct or sexual assault" used in s5(2)(b) was of such generality that it did not support the distinction urged upon the Court between an assault based on a threat of violence and a battery, however slight. In paragraph 10 Meagher JA apparently agreed with that statement, because he said: "[T]he conjunction of the verb "to rob" and the noun "baseball bat" necessarily imply either actual violence or a threat of violence." 8. It is therefore necessary to examine the elements of the offences referred to the Court for the purpose of determining whether the offender is an eligible person within the meaning of s5 of the Act. 9. In relation to offence (1), the offence of aggravated break, enter and steal, the prosecution concedes that its argument on ineligibility is not a strong argument because the elements of the offence are satisfied by possession of an offensive weapon after the event. There is not the conjunction of verb and noun that was considered critical by Meagher JA in Ebsworth. The offence can be made out without there being a victim of actual or threatened violence. 10. In relation to the offence of robbery with corporal violence, offence (2), the prosecution concedes that the charge is misconceived as the production of the knife did not occur at the same place as the theft and the knife was produced to avert apprehension rather than as a part of the theft. As the charge has not yet been withdrawn, it does represent a technical hurdle to a finding of eligibility, but the prosecution concedes that the matter should not be determined on that basis. 11. As to the assault charge, offence (3), the prosecution has indicated that the charge is really subsumed within the fourth offence. I infer that this matter may not proceed. In any event, Mr Healy for the offender has indicated that the offender is not seeking entry onto a Drug Court program in relation to the assault matter. Both parties agree that the s5 issue should be determined on the basis that the assault charge is not currently before the Drug Court. 12. Therefore, the offender's eligibility for a Drug Court program depends upon whether the charge under section 33B(a) of use offensive weapon with intent to prevent lawful apprehension is "an offence involving violent conduct". 13. Section 33B provides: Any person who: (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a member of the police force from investigating any act or circumstance which reasonably calls for investigation by the member shall be liable to imprisonment for 12 years. 14. There are two elements to an offence against s33B(a): (1) use of an offensive weapon, and (2) with intent to prevent lawful apprehension. 15. The offender contends that, where an offence makes no reference to a victim, it is not "an offence involving violent conduct". The offender argues that there must be actual or threatened violence towards a victim before conduct will amount to violent conduct. He argues that the use of a baseball bat to break out of a house to avoid apprehension or the use of a firearm to shoot a lock off a door to avoid arrest would be enough to establish an offence against s33B(a), although no victim was involved. The offender contrasts s33B(a) with s33B(b), arguing that offences against s33B(b), where they involve a threat of injury to a person, are offences involving violent conduct, as they have a human victim. 16. I accept the offender's contention that the expression "offence involving violent conduct" does imply a victim. The whole expression is "offence involving violent conduct or sexual assault" and the phrase "sexual assault" clearly implies a victim. The purpose of inserting the provision was to ensure that offenders who may represent a risk of violence towards others in the community are not granted conditional liberty while undertaking a Drug Court program. 17. The prosecution impliedly accepts the offender's contention about the necessity for there to be a human victim, but argues that the word "weapon" implies a victim. I do not accept that submission. 18. The expression "offensive weapon or instrument" is defined in s4(1) of the Act to mean (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. Clearly, there are encompassed within the expression "offensive weapon or instrument", both items designed for use as weapons but which may or may not actually be used as weapons and items which, though not designed to be used as weapons, are, on the particular occasion, intended or actually used as such. The inclusion of both items used or intended to be used as weapons and items designed to be used as weapons, whether or not so used, supports the offender's contention that there does not necessarily have to be a victim involved. 19. If one examines the facts supporting the "use" of an offensive weapon in the present case, it is obvious that the facts disclose a threat of violence. However, as the Court is called upon to examine only the elements of the offence, the offender is not ineligible because he has been charged with an offence against s33B(a) alone. 20. I now turn to consider the argument under s7. In addition to the facts of the offences of 13 June and 21 July 2000, in relation to the s7 argument the prosecution relies upon the offender's prior criminal record and upon a report of Dr Read. The offender has led evidence in relation to his background and has tendered his custodial record, which indicates that there have been no disciplinary breaches while in custody. 21. The offender has a very lengthy criminal record. That record includes two offences of assault with intent to rob in 1989, the facts of which are unknown. They are matters which were dealt with in the Children's Court. There was an offence of conspiracy to commit robbery in February 1991, when the offender was a juvenile. The offender was 16 years old. He conspired with a group of other juveniles of about the same age to commit a robbery on a grocery store. It was a fairly unsophisticated plan which involved a replica pistol. The plan was not carried out. The offender said that that was because the participants were too scared to pursue the plan. In March 1994 there was an offence of armed robbery. The offender entered a store, and in the course of committing a theft, discharged a firearm as he walked out. The offender said that the firearm was accidentally discharged. He did concede that he hit the shop attendant on the head in the course of the incident. He said that he was intoxicated. It was later that he appreciated the effect of his conduct on the victim. He wrote and apologised to the victim. I have already referred to the circumstances of the offences before the Court. 22. The evidence as to the offender's upbringing indicates that he grew up in a children's home and does not recall his parents. He had a variety of foster placements, the longest period of which was for about 9 to 12 months. When he was 11 years of age, his natural father took him and he stayed with the natural father for one or two years, but his father assaulted him for keeping bad company and the offender ran away at 13 years of age. He then began to live with his natural mother, but that was always an unstable placement. He began using illicit drugs at 13 years of age. That is a very brief outline of the offender's childhood, which Dr Read describes as a "profoundly disturbed developmental history". 23. Dr Read's report is quite clear on the issue of risk of violence. Dr Reid refers to the lack of impulsivity in relation to the offender's violence and the fact that the offender apparently does not appreciate the significance of his actions. These assertions by Dr Read have been questioned by Mr Healy for the offender. To some extent, I accept Mr Healy's submissions that the offences of the offender have been more impulsive than planned. However, it is hard to see that the possession of a firearm or a knife could be anything other than planned. True it is that the precise use to which such an item is put may be unplanned or impulsive but the actual possession of the item as a precaution must have been planned. 24. Dr Read goes on to state that he does not believe that the offender would behave violently towards Drug Court participants or treatment providers. I am sure that is correct. That assertion is supported by the custodial record, which indicates no violent behaviour while within the confines of an institution and while under direct supervision. Dr Read goes on to state: "However, in terms of risk to the community, were Mr Cook to commit further robbery offences or were he to be facing apprehension for offences that may result in imprisonment, it would be quite probable based on the above history and assessment that he may again use a weapon. While the Drug Court program through its therapeutic structure would probably provide the best opportunity for change, there is no guarantee that this would be achieved. There would be an ongoing risk that Mr Cook may choose to commit further offences and in this context I would be concerned that his pattern of weapon use could be repeated." 25. Having regard to the profoundly disturbed developmental history, including violence perpetrated by adults towards the offender, the long history of possession and use of weapons in connection with theft offences and the fact that all Drug Court participants are at risk of relapse and the commission of further offences, it is clear that, were the offender to be placed on a Drug Court program, there would be a significant ongoing risk of violence towards members of the community. For that reason, in the Court's discretion under s7, I am satisfied that it would be inappropriate to place the applicant on a Drug Court program and I decline to sentence him under s7. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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