Drug Court of New South Wales CITATION : R v Armanios [1999] NSWDRGC 5 PARTIES : Crown ARMANIOS, David FILE NUMBER(S) : 0116/99 of 1999 CORAM: His Honour Judge Neil Milson at 1 CATCHWORDS: 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 an offence under s 97 of the Crimes Act 1900 is an offence involving "violent conduct" LEGISLATION CITED: Drug Court Act 1998 (NSW), Crimes Act 1900 (NSW), Criminal Procedure Act 1986 (NSW CASES CITED: R. v Ranse [1999] NSWDRGC 2 ; R. v Sloane [1999] NSWDRGC 3, considered DATES OF HEARING: 12/05/99 DATE OF JUDGMENT: 12 May 1999 J. Pheils, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Mr H. White, Hugh White and Co. Solicitors JUDGMENT: 1. The defendant was referred to the Drug Court from Liverpool District Court to answer an indictment for an offence against section 97 of the Crimes Act 1900 of robbery in company. The question to be decided now is whether, pursuant to s5(2)(b) of the Drug Court Act 1998, the accused is excluded from the s5(1) definition of "eligible person" because he is "charged with ... an offence involving violent conduct." 2. The brief facts upon which the Crown relies in support of that count are as follows: "About 8.00 pm on 24 June 1998 the defendant an unknown co-offender have entered the Rio Grande Texas BBQ Takeaway at 5/4 McArthur Ave, Revesby. The defendant was armed with a syringe and the co-offender a length of wood with nails protruding from one end...." 3. There have been a series of decisions taken by the Drug Court relating to offences that involve violent conduct, and they seem to be forming a progression from R. v Ranse [1999] NSWDRGC 2, where there was an offence of stealing from the person, R. v Sloane [1999] NSWDRGC 3 where it was a robbery with a knife that was not produced, and where the victim said that the offender was not violent and short (4 May 1999) where the defendant was the driver of the motor vehicle and not in the shop, although a knife was produced in the shop. 4. Now we have the situation where the defendant is in the shop, produced a weapon in the form of a syringe, and he was in the company of another person who was armed. 5. For a number of reasons in the matter of Sloane (supra), her Honour took the view that the particular offence was not an offence involving violent conduct. She made two statements that are of particular relevant to me today. One is the following from paragraph 18: "To the extent that the legislation can be regarded as beneficial legislation, it should be generously construed. Ambiguous provisions should be construed to allow drug dependent offenders the benefit of an opportunity to seek participation in a Drug Court program." Her Honour went further, to say that "For the above reasons I find that a person charged under section 94 of the Crimes Act, with robbery which involves a threat, rather than the actual use of physical violence is not thereby excluded from the section 5 class of eligible persons." 6. I acknowledge and accept the validity of her reasoning in coming to that decision. The question is whether this offence, because it involves a threat rather than actual physical force, should also be covered by the same ruling. 7. This offence is substantially different to that offence in both the ingredients of the offence and in the penalty that it carries. An offence against section 97(1) carries a penalty of twenty years, and if it were to be charged in the aggravated form, twenty five years, as opposed to the fourteen years provided for an offence under section 94. A very significant difference in penalty is provided by the legislation to reflect the very great aggravating features which are firstly that the defendant was in company with somebody else, and secondly that each of them were armed. 8. Whilst once again there was no physical forced to constitute the violence, it is my view that the company of another armed person raises quite considerably the degree of violence which is implicit in the threat created by their presence in this fashion. 9. It is true that the legislation remains ambiguous and that there is a difference between what was said during the second reading speech relating to there being a difference between armed and unarmed robberies, and that some would be in and others would be out, and the legislation then being limited to "offences involving violent conduct." 10. It is my view that an offence against section 97 of the Crimes Act, with facts that include the defendant and another person in company each producing weapons in the form of a piece of wood with nails driven through the end and protruding, and a syringe is in fact an offence which does involve violent conduct and is thereby excluded by the provisions of section 5(2)(b) of the Drug Court Act 1998. 11. For those reasons I find that the defendant is not an eligible person. 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.