Reported Decision : Drug Court of New South Wales CITATION : R v Chandler [1999] NSWDRGC 6 Regina PARTIES : -v- CHANDLER, Paul Summers FILE NUMBER(S) : 0124 of 1999 CORAM: Her Honour Senior Judge Gay Murrell SC Dependent on Prohibited Drug - Drug Court Act 1998 (NSW) - Meaning of Eligible Person - Violent Conduct :- Whether the accused is an "eligible person" under the Drug Court Act 1998 - whether he "appears to be dependent on prohibited drugs" - whether the offence of dangerous driving occasioning death "involves violent conduct". Drug Court Act 1998 (NSW) CATCHWORDS: s3(1) s5(1) " appears to be dependent on prohibited drugs" s5(2) "violent conduct" LEGISLATION CITED: Drug Court Act 1998 (NSW) Crimes Act 1900 (NSW) CASES CITED: R v Ranse [1999] NSWDRGC 2, ; R v Sloane [1999] NSWDRGC 3 considered. DATES OF HEARING: 13/05/99, 03/06/99, 16/06/99 DATE OF JUDGMENT: 16 June 1999 J. Pheils, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: C. Craigie, of counsel JUDGMENT: 1. The accused is charged on indictment with the following offences. (i) On 27 October 1997 at Bass Hill he did steal a motor vehicle, (ii) On 27 October 1997 at Bass Hill he did drive a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning death in circumstances of aggravation, ie the accused's driving ability was very substantially impaired by the fact that he was under the influence of heroin. (iii) On 27 October 1997 at Bass Hill he did drive a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning grievous bodily harm in circumstances of aggravation, ie the accused's driving ability was very substantially impaired by the fact that he was under the influence of heroin. 2. Pursuant to s6(2) of the Drug Court Act 1998 (the Act), the Penrith District Court referred the accused to the Drug Court to be dealt with for these offences. 3. Four preliminary issues arise. (i) Whether the accused satisfies the "eligible person" criterion that he "appears to be dependent on the use of prohibited drugs". (ii) Whether the accused is not an "eligible person" because he is charged with "an offence involving violent conduct". (iii) Whether the accused satisfies the "eligible person" criterion that his "usual place of residence" is within one of the prescribed local government areas. (iv) Whether in the exercise of its general discretion under s7(2) of the Act the Court ought to convict and sentence the accused under s7(2). HISTORY 4. The prosecution alleges that at about 4.50pm on 27 October 1997 at Bass Hill the accused drove a stolen motor vehicle east on the Hume Highway at an estimated speed of ninety kilometres per hour in a seventy kilometre per hour zone. He changed lanes in an "aggressive manner" and proceeded to weave erratically between the three east bound lanes. His vehicle clipped the side of another vehicle. He attempted to correct his vehicle but lost control of it. His vehicle veered at right angles across the roadway, mounted the median strip and became airborne. The accused's vehicle landed on the roof of an oncoming white Laser vehicle, rolled onto a blue Magna vehicle and came to rest upside down. The driver of the Laser was trapped for two hours and later died as a result of injuries sustained in the collision. Her passenger suffered a mild brain injury. The accused walked from the scene but was apprehended. A blood sample taken from him at 11.30pm revealed .28 milligrams of morphine per litre of blood. This level is within the toxic to lethal range. The level would have been higher at the time of the collision. In an electronically recorded interview on 10 November 1997 the accused said that he had used one cap of heroin at Cabramatta an hour before the collision. 5. On 9 March 1998 the accused was charged. Bail was granted. On 18 November 1998 at the Parramatta District Court pleas of guilty were entered. 6. Until relatively recently the accused lived with his parents at Kariong on the New South Wales Central Coast. During April 1999 the matters ultimately referred to this Court were adjourned several times. On 8 May the accused moved to shared accommodation at Blacktown (within the Drug Court catchment area) in order to satisfy the requirement that his usual place of residence be within one of the local government areas prescribed under the Act and the Drug Court Regulation 1999. 7. The accused is thirty-three years of age (date of birth 2 June 1966). When he was about eighteen or twenty years old the accused began to use amphetamines. He continued to do so about twice a month until he was about twenty-five years old. From the late 1980s (when the accused was in his early twenties) he used heroin. By 1994 he was using heroin in substantial amounts. He ceased working. He has not had permanent employment since that time. In 1994 the accused entered a methadone program. He remained heroin free for a period which was variously stated to be three months or two years. I consider that the period during which the accused was heroin free was probably less than twelve months, partly because in February and April 1995 he was convicted of several offences of dishonesty. I consider that by early 1995 the accused was again a significant user of heroin. On 26 June 1995 the accused was convicted of driving under the influence of Rohypnol. 8. The accused's heroin use increased and by 1996/97 he was using a substantial quantity each day, perhaps one and a half to two grams. He was a very heavy user in October 1997 when he committed the offences in question. 9. On 8 January 1999 the accused was charged with driving under the influence of heroin, possess prohibited drug and several dishonesty offences. From about 8 January to 29 March 1999 the accused was in custody. While in custody he used heroin about three times. There was a four week period during which he did not use heroin at all. 10. On 17 February 1999 Dr Bruce Westmore, forensic psychiatrist, examined the accused at Parramatta Correctional Centre. The accused apparently understated the extent of his drug use, informing Dr Westmore that from October 1997 to December 1998 he was drug free and that from December 1998 to February 1999 he used heroin on only three occasions. Dr Westmore ascertained that the accused had been taking antidepressant medication since 1996. In his report, Dr Westmore refers to the accused's problems with "substance abuse" and to periods of depression and opines that there may be some connection between the accused's depression and his substance abuse. In Dr Westmore's opinion at the time he saw the accused, the accused did require rehabilitation for his drug problem and would benefit from attending an in-patient drug rehabilitation facility. Dr Westmore expressed no clear opinion on whether the accused was "dependent on prohibited drugs". He had not been asked to assess the accused for that purpose. 11. From the time of his release from custody on 29 March up until late April 1999 the accused reports using one to two caps of heroin per day. I accept that the accused probably used heroin frequently but consider that the accused was exaggerating when he said that he used heroin daily during the one month period late March to late April 1999. However, I do accept that the accused spent much of his fortnightly unemployment benefit on drugs. From late April 1999 the accused used heroin each two to three days. For example, he used heroin on 7 May and next used on 10 May. 12. On 11 May the accused was admitted to the Drug Court's detoxification unit at the MRRC Silverwater. Staff noticed no clinical signs of withdrawal and recorded no complaints of withdrawal symptoms. In evidence the accused said that he had the sniffles and minor cramping in the detoxification unit, suggesting that these were symptoms of heroin withdrawal. I consider that the accused experienced no significant withdrawal symptom at this time. 13. On 20 May 1999 the accused was assessed by Anita Duffy, clinical psychologist. In her report, Ms Duffy refers to the accused's history of depression and use of drugs as a means of defending against depression. She refers to the accused's need to struggle against drug use and to his fear of relapse, particularly when he receives a Social Security payment and has money to spend. She refers to the accused's persistent desire to control substance use, to much time spent in activities necessary to obtain drugs and to the abandonment or reduction of important social, occupational or recreational activities "because of substance abuse". She says that the accused "has been dependent on (heroin) to provide emotional and pain relief and to enhance his self imagine." In referring to the accused's drug problem, Ms Duffy does use the expressions "drug dependence" and "drug abuse" inter-changeably. However, on page 7 of her report she states that the accused's drug history, personality and presentation all indicates st rong evidence of substantial dependence as defined in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM IV). ELIGIBILITY 14. Pursuant to s7(2)(a) of the Act, the Drug Court may only convict and sentence an offender if it is satisfied, inter alia, that the person is an "eligible person". "Eligible person" is defined in s.5(1) of the Act. One of the criteria is: "5(1)(d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations." Section 5(2) provides. "5(2) A person is not an eligible person if the person is charged with: (a) . . . (b) an offence involving violent conduct or sexual assault, ...." OFFENCE INVOLVING VIOLENT CONDUCT 15. An "offence involving violent conduct" means an offence which has as one of its elements conduct which should be characterised as "violent conduct": R v Ranse [1999] NSWDRGC 2. "Violent conduct" refers to the actual use of physical force: R v Sloane [1999] NSWDRGC 3. 16. The accused contends that "conduct" means "willed behaviour" and that when eligibility is considered it is the willed behaviour of the offender rather than the outcome of the offender's conduct which should be examined. It is argued that "offence involving violent conduct" refers only to an offence with a specific and violent intent. 17. In my view, the expression "violent conduct" looks at the nature of the relevant conduct rather than the intent of the conduct. If violence in the sense of actual force is an element of the offence in question, the offence is "an offence involving violent conduct" and the offender is excluded. 18. The accused is charged with offences under s52A of the Crimes Act 1900 which have as elements the driving of a vehicle which is involved in an impact with a person. Such conduct is violent conduct, ie conduct involving actual force. I accept the Crown's submission that this is a case of actual violence. Therefore s5(2)(b) of the Act renders the accused ineligible for sentence under s7(2) of the Act. APPEARS TO BE DEPENDENT ON THE USE OF PROHIBITED DRUGS 19. Although I do not need to determine the meaning of the expression "appears to be dependent on the use of prohibited drugs", the meaning was fully argued and I consider that it would be helpful to express a view on this matter. 20. The parties agree that the relevant time for determining apparent dependency is the time of referral to the Drug Court for sentence by the Court, rather than the time of commission of the relevant offence. 21. The expression "appears to be dependent on the use of prohibited drugs" is not defined in the Act. The Crown contends that the expression has the same or a similar meaning to the criteria for substance dependence contained in DSM IV and that the Court should draw a distinction between substance dependence and substance abuse which is similar to that drawn by DSM IV. The Crown argues that the accused is a substance abuser but is not substance dependent. 22. DSM IV provides the following criteria for substance dependence. "A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12 month period. (1) tolerance, as defined by either of the following: (a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect (b) markedly diminished effect with continued use of the same amount of the substance (2) withdrawal, as manifested by either of the following: (a) the characteristic withdrawal syndrome for the substance .... (b) the same (or a closely related substance is taken to relieve or avoid withdrawal symptoms (3) the substance is often taken in larger amounts or over a longer period that was intended (4) there is a persistent desire or unsuccessful efforts to cut down or control substance use (5) a great deal of time is spent in activities to obtain the substance (e.g., visiting multiple doctors or driving long distances), use the substance (e.g., chain-smoking), or recover from its effects (6) important social, occupational, or recreational activities are given up or reduced because of substance use (7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worst by alcohol consumption) Specify if: With Physiological Dependence: evidence of tolerance or withdrawal (i.e., either Item 1 or 2 is present) Without Physiological Dependence: no evidence of tolerance or withdrawal (i.e., neither Item 1 or 2 is present)" DSM IV provides the following criteria for substance abuse. A. "A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12 month period. (1) recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home (e.g., repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household) (2) recurrent substance use in situations in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use) (3) recurrent substance-related legal problems (e.g., arrests for substance-related disorderly conduct) (4) continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance (e.g., arguments with spouse about consequences of intoxication, physical fights) B. The symptoms have never met the criteria for Substance Dependence for this class of substance." 23. The accused argues for a broader interpretation of the expression "dependent on the use of prohibited drugs". He contends that it means "lack of independence from prohibited drugs" and encompasses circumstances (such as the accused's circumstances) where an offender demonstrates a persistent and intractable (even if sporadic) pattern of drug use which shows an inability to abstain from the use of prohibited drugs. The accused argues that, in any event, he satisfies the DSM IV meaning of drug dependence. Mr Craigie, the accused's counsel, relies on DSM IV dependency factors (4), (6) and (7). 24. The expression "appears to be dependent on the use of prohibited drugs" should be interpreted in a manner consistent with the object of the Act. 25. Section 3 of the Act provides: "3(1) The object of this Act is to reduce the level of criminal activity that results from drug dependency. (2) This Act achieves that object by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. (3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen." 26. It is true (as the Crown contends) that subsection (3) assumes a financial connection between the drug dependency which the Act seeks to address and the criminal activity which the Act seeks to reduce. The inference is that the offenders to whom the Act is directed use prohibited drugs with such frequency that the use cannot be financed legitimately and the offenders must resort to criminal activity in order to finance their drug use. 27. In my view, the object set out in s3(1) should not be read down by subsection (3). Subsection (3) is a statement of general outcome only. The criminal activity to which ss(1) refers is both property crime committed to finance drug dependency and other crime which is the direct result of drug dependency, such as driving under the influence of a prohibited drug or being in possession of a prohibited drug. 28. I have been furnished with a number of dictionary definitions of "dependence" and "dependent". Each of the definitions refers to subordination. Dependence can also be defined as a lack of independence. 29. The Court functions in partnership with the health profession. The concept of "drug dependence" (as distinct from "drug abuse") is well understood by the health professions. In the health professions there is an almost universal acceptance that the DSM IV criteria for substance dependence provide either an acceptable definition of substance dependence or (at least) a very helpful guide to what constitutes substance dependence. Satisfaction of the DSM IV criteria for substance dependence would demonstrate a lack of independence from the use of prohibited drugs and subordination to the use of prohibited drugs. It is appropriate that in the Act the expression "appears to be dependent on prohibited drugs" should be interpreted in accordance with practice in the health professions. 30. In my view, an offender "appears to be dependent on prohibited drugs" when the offender's lifestyle lacks independence from or is subordinate to the use of prohibited drugs. The manifestation of three of the DSM IV dependency criteria in the twelve month period preceding an offender's referral to the Drug Court would generally evidence a lack of independence from or subordination to the use of prohibited drugs. 31. I turn to consider whether the DSM IV criteria for dependency apply to the accused. There is some evidence of dependency criterion (4) (persistent desire or unsuccessful efforts to cut down or control substance abuse). The accused managed to remain drug free for only part of the period which he spent in custody in early 1999. Upon his release he returned to frequent use of heroin. As to dependency criterion (6), there is some evidence of ongoing interference with important recreational and employment activities. Repeated driving while under the influence of heroin would fall under this criterion. The accused has not worked since 1994 but previously had a reasonable employment record. However, his unemployment may be due to a number of factors. As to criterion (7), there is evidence from Dr Day that in January 1998 the accused was admitted to hospital with major health problems related to intravenous drug use, including abnormal liver function associated with hepatitis C apparently caused by intravenous dr ug use. In June 1998 Dr Parkin, the accused's gastroenterologist, expressed concern to Dr Day regarding the accused's hepatitis C and liver function, stating "(the accused) must stop using." 32. I consider that the accused does appear to be dependent on the use of prohibited drugs within the meaning of s5(1)(d) of the Act. 33. I do not propose to consider the issues of "usual place of residence" or s.7(2) discretion. ******** 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.