R v Schoffel [2001] NSWDRGC 11

Drug Court of New South Wales

CITATION : R v Schoffel [2001] NSWDRGC 11 Regina PARTIES : -v- Schoffel, Brett David FILE NUMBER(S) : 0034 of 2001 CORAM: Her Honour Senior Judge Gay Murrell SC CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 24 October 2001

Regina: D. Muddle, Director or Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender: S. Healy, Legal Aid Commission (NSW)

JUDGMENT: 1. Originally, the Director of Public Prosecutions submitted that the offender was not an "eligible person" within the meaning of s5 of the Drug Court Act 1998. However, that argument is no longer pursued. The prosecution's remaining submission is that, in the exercise of its discretion pursuant to s7 of the Act, the Court should decline to sentence the offender.

2. The prosecution's argument under s5 concerned a charge of aggravated break, enter and steal on 24 January 2001. That charge was laid on 8 May 2001 and came before the Drug Court on 25 June 2001. On 6 August 2001, the prosecution indicated that the averment of aggravation relied upon as corporal violent as provided under s105A(1)(c) of the Crimes Act 1900. Had the charge remained in the Drug Court, it is clear that the offender would have been ineligible for a Drug Court program. However, on 14 September 2001 the charge was referred back to the Penrith Local Court to be dealt with before that court as a defended matter. In R v Ahmad [2001] NSWDRGC 7, his Honour Judge Milson decided that s5(1) of the Drug Court Act refers only to an offence before the Drug Court and that a person charged before a court other than the Drug Court with "an offence involving violent conduct" within the meaning of s5(2) of the Act is not thereby rendered ineligible for sentences under s7 of the Act and entry on to a Drug Court program. I am not sure the Ahmad decision is correct. However, the correctness of the decision has not been canvassed by the prosecution in these proceedings. For the purposes of these proceedings, the decision has been accepted as correct. Consequently, the offender is to be treated as an eligible person.