Drug Court of New South Wales CITATION : R v Lapa [2004] NSWDRGC 1 Regina PARTIES : V Lapa, John FILE NUMBER(S) : 162 of 2004 CORAM: Her Honour Judge Orchiston CATCHWORDS: Drug Court Act 1998 (NSW) - Meaning of Eligible Person - Risk if admitted to Drug Court Program - Risk to Community - Violent Conduct :- LEGISLATION CITED: Drug Court Act 1998 (NSW) Chandler v DPP [2000] NSW Court of Appeal 125; CASES CITED: R v Ranse [1999] NSW DRGC; DPP v Ebsworth [2001] NSW Court of Appeal 318 DATES OF HEARING: 16 September 2004 DATE OF JUDGMENT: 16 September 2004 Regina: R. Ranken, Director or Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender: E. Thornton, Legal Aid Commission (NSW) JUDGMENT: 1 The Offender, Mr Lapa, was sentenced at Fairfield Local Court on 14 April 2004 on a charge of intimidate a police officer while in the execution of the officer's duty under s 60(1) of the Crimes Act. 2 He was sentenced to a term of imprisonment of six months which was suspended upon his entering into a s 12 good behaviour bond. During the currency of the s 12 bond, he was charged with the further offences of break enter and steal and a goods in custody to which he has pleaded guilty and which have now been referred to the Drug Court. The offender seeks entry to a Drug Court program. 3 Under s 8AB(2) of the Drug Court Act, (the Act), the Court may deal with an offender in relation to an alleged failure to comply with the conditions of a s 12 good behaviour bond if the person is "an eligible person" under s 8A(2)(a). An "eligible person" is defined in s 5 of the Act. So far as is relevant to the present case, a person is not an eligible person pursuant to s 5(2)(b) if the person is "charged with …… an offence involving violent conduct". 4 The issue for determination by the Court is therefore whether the charge of intimidate a police officer constitutes an offence of "violence conduct" which, if so, would render the offender an ineligible person for entry onto the Drug Court program under s 5(2)(b). The facts 5 The facts, as outlined in the facts sheet, for the offence of intimidate a police officer are that: On 20 February 2001 the defendant was a passenger in a motor vehicle stopped by police. He swore at police when told to remain in the motor vehicle and was given a warning, whereupon he swore again, and was informed he was under arrest for offensive language. The defendant reached down into his jacket pocket. Police attempted to restrain him, fearing that he may have a weapon in his pocket. He struggled violently. Police located a ten centimetre kitchen knife at the defendant's feet. At the police station, the defendant said to police, "I am going to gut you like a fuckin' fish, you cunt. I am going to slit your fuckin' throat". 6 The facts sheet states that the police: "took these threats seriously due to his association with the criminal element. Police fear that the defendant is capable of carrying out these threats due to his past violent behaviour towards police. At the station, the defendant was uncooperative and aggressive towards police and refused to be interviewed". "Violent conduct" 7 In Chandler v DPP [2000] NSW Court of Appeal 125, the Court considered the meaning of the words "violent conduct" in s 5(2)(b) of the Act in the context of an offence under s 52A of the Crimes Act. In that case, his Honour Justice Hodgson, Chief Justice in Equity, with whom Justice Stein agreed, upheld the decision of Senior Judge Murrell in R v Ranse (1999) NSW DRGC, 2 that the Drug Court Act has as one of its objects under s 3, the provision of a benefit to offenders, hence s 5(2)(b) should be construed quite strictly as it removes a benefit which would otherwise accrue to an offender. His Honour held therefore that in the application of s 5(2)(b) the use of the word "charged" suggests very strongly that it is the elements of the offence with which the person was charged which are significant, not the particular conduct or circumstances of the offence actually committed by the person. His Honour expressly upheld the earlier decision of Senior Judge Murrell in Ranse in this regard. 8 In reaching her decision in Ranse, Senior Judge Murrell placed reliance also on the Second Reading Speech delivered by Mr Justice Whelan, MLC, Minister for Police on 27.10.1999 in which he stated: "The Drug Court program will deal only with offenders who commit certain categories of offences. These offences will be mainly non violent theft offences. Those offenders who commit sexual offences and offences involving violent conduct will not be eligible. The types of offences that will be included are break enter and steal, fraud and forgery offences, offences involving stealing from the person or unarmed robberies provided there is no violence [my emphasis], possession and use of prohibited drugs or dealing in quantities of prohibited drugs below the indictable limit". 9 Her Honour was of the view, that having regard to the terms of the objects of the Act, the need to construe s 5(2)(b) narrowly, and the Minister's Second Reading Speech: "It is clear that s 5(2)(b) renders certain offenders ineligible by reference to the offence charged rather than by reference to the surrounding circumstances". 10 In DPP v Ebsworth (2001) NSW Court of Appeal 318, his Honour Justice Meagher, with whom Justice Sheller and President Mason agreed, upheld the construction of s 5(2)(b) by Justice Hodgson in Chandler, that is, that the Court must look at the elements of the offence charged to determine whether it is an offence involving "violent conduct". 11 I note, however, that both Chandler and Ebsworth were decided before the amendments under Pt 2 Div 1A of the Act were introduced, which provided for the Drug Court to deal with alleged breaches of s 12 bonds under s 8AB of the Act. 12 One must ask, therefore, whether the focus on the word "charged" in s 5(2)(b), should be given the same force in the present context of s 8AB where the offender has already been convicted and a suspended sentence imposed as it was given in both Chandler and Ebsworth and earlier in Ranse by her Honour Senior Judge Murrell. I am not aware of, and the parties have not referred me to, any authorities which have considered the construction of s 5(2)(b) in the context of s 8AB of the Act. 13 I note that in Ebsworth, Justice Meagher stated that if the test of looking at the elements of the charge (which I will henceforth refer to as the elements test) was wrong, then he would consider the particular conduct of the offender in that case (which I will henceforth refer to as the conduct test). He was prepared to countenance that the elements test could be wrong and went on to consider the conduct test. I find his approach instructive in the present case. 14 Given the uncertainty of the appropriate test in the present context of s 8AB, I propose to follow Justice Meagher's approach in Ebsworth and consider first the elements test, (that is, whether the elements of the offence of intimidate a police officer involves "violent conduct"), and then secondly, if I be wrong in that view, to consider the conduct test, (that is, whether the particular conduct of the offender before the Court, based on the facts provided, constitutes "violent conduct"). The elements test 15 It has been held that the word "intimidate" for the purposes of s 60(1) requires proof of actual intimidation and means "to render timid, to inspire with fear, to overawe, to cower, or to force to, or deter from, some action by threats or violence or by inducing fear": Meller v Low (2000) 48 NSWSLR 517. 16 In R v Manton (2002) NSWCCA 316, the Court of Criminal Appeal held that it is sufficient for the offence if the prosecution proves that the acts or words, [my emphasis] of the accused actually caused the police officers to experience fear of apprehension for his or her personal safety. 17 It is clear from this that the offence is constituted either by conduct or threats causing fear of apprehension for a police officer's personal safety. 18 The question is whether this can be characterised as an offence of "violent conduct" pursuant to s 5(2)(b)of the Act. There is no definition of the term "violent conduct" in the Act and there is no case law directly on point that I am aware of, or that has been referred to me, in the particular context of a charge of intimidate a police officer. The Court must therefore seek guidance from the relevant case law, including Chandler and Ebsworth, which dealt with the concept of "violent conduct" in the context of other offences. 19 In Chandler, Justice Hodgson, after considering analogous provisions in other legislation and dictionary definitions, was of the opinion that "the dictionary definitions, suggest that violence generally refers to the application of rough, strong, physical force". 20 Clearly on this definition the present offence of intimidate police officer would not be "an offence of violent conduct". 21 However, Justice Hodgson's acceptance of this definition in Chandler must be viewed in the context of the particular offence under consideration in that case, that is, a charge of dangerous driving causing death, (s 52A), where, by the very nature of the offence, an application of actual physical force is required. 22 I do not consider that his Honour thus sought to provide an exhaustive definition of the term "violent conduct". Indeed, he was looking at the word "violence". 23 In Ebsworth, the Court held that a necessary element of robbery is the use of violence or the threat of violence as the means of putting the victim in fear. President Mason stated that s 5 of the Drug Court Act does not require that the violent conduct give rise to physical injury. 24 I consider however that these principles in Ebsworth should be considered in the context of the particular charge before the court in that case, that is, robbery armed with an offensive weapon. I point in particular in this regard to Justice Meagher's observations at p 4, para 20: "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", and most pertinently he then goes on to say: "Those two elements together [my emphasis] constitute violent conduct". 25 His Honour further went on to say at paragraphs 25 and 26: "Even if that test is wrong, [that is, the elements test], and if it were necessary to consider the particular conduct of the offender, the first opponent's behaviour in this case necessarily constitutes violent conduct …… Threatening to use violence in the form of brandishing a baseball bat is sufficient to constitute violent conduct". 26 I find these remarks highly instructive in the present case. Whichever test is applied, and Justice Meagher looked at both, be it the elements test or the conduct test, he characterised violent conduct as a threat of violence coupled with an offensive weapon. He required the conjunction of a threat of violence with an offensive weapon being present at the time. 27 Justice Meagher found support for his interpretation of the elements test in, and indeed quoted with approval from, the decision of R v Butcher (1986) VR 43 which similarly involved a charge of armed robbery. The Full Court of the Supreme Court of Victoria, in that case, was required to construe the word "violence" in s 3(a) of the Crimes Act 1958, Vic. It held that it referred not only to physical force but also included those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces: "…… if actual force is not used, then the menace or threat must either be such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion, if force is used there can be no debate that this is actual violence. If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is constructive violence, as Willes SJ said in Donnally's Case. But both putting a person in fear or seeking to put a person in fear of being "subjected to force" have always been accepted under the common law as violence, sufficient to render a contemporaneous larceny a robbery" (at 50). 28 Further, the Full Court in Butcher stated that: "…… the word "violence" where it is used in s 3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence" (at 53). 29 It further stated: "…… the intent now required may be a preparedness or intent to overpower the party robbed, to seek to prevent his resisting - either by actual force or by intimidation" (at 54), and the Court went on to say: "If there is not actual force used then the putting in fear or seeking to put in fear must be intended to induce the victim through fear to part with his money or goods in his keeping" (at 54). and further still, at 54, "These cases are simply illustrative of the fact that violence must be interpreted to include threats such as in common experience would be expected or likely to take away resistance, which has always been considered to be an element, necessary to prove, in the crime of robbery". 30 Again, some of these remarks must be read in the context of construing the word "violence" in the context of the crime of armed robbery. 31 I have also considered and sought some guidance on the matter, from the decision of R v Breeze (1999) 106 A Crim R 441 which was referred to in Ebsworth. In Breeze, a case which also involved the offence of armed robbery, the Queensland Court of Criminal Appeal followed Butcher and also referred to some Tasmanian authorities. The Court held, at 445 and 446, that: "In McCrossen [1991] TasR 1, Green CJ had to construe a provision in the Criminal Code (Tas) enabling a person convicted of a crime "involving an element of violence" to be declared a dangerous criminal. Green CJ held that: "Applying the meaning which the common law has given to the word 'violence' I hold that for the purposes of the [relevant provision] the making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence." 32 In reaching this conclusion his Honour applied Australian and English decisions …… Of those the most significant is, as it seems to us, Butcher [1986] VR 43 …… The question was whether robbery under Victorian law is a crime "the necessary elements of which include violence" and the court held that it is, on the ground that robbery, although it may be affected by threat, was at common law regarded as a crime of violence. The court reached its conclusion by holding that: "If threats are made personally to intimidate or seeking to intimidate, this is also …… violence" (at 50; 9)……" The Court concluded: "At the heart of the decision, however, is the view that at least in the context of commission of a robbery [my emphasis], a threat of violence to induce compliance is itself regarded as violence." 33 In summary, each of the cases of Ebsworth, Butcher, and Breeze, dealt with the concepts of violence or violent conduct in the context of an offence of armed robbery. In the present context of an offence of intimidate a police officer, there is a threat of violence simplicter. There is no issue of the over-powering of resistance; and there is no immediacy in terms of the threat made. Whilst the threat was made directly, nonetheless it lacked immediacy in terms of its capability of being carried out, the offender being in a police station at the time. I shall deal with these issues further, however, in the context of the conduct test. 34 I have further considered whether some guidance may be provided in the context of the offence of assault. Clearly the authorities countenance that in some circumstances, the use of verbal threats, alone, may constitute an assault, but only where there is an apprehension of immediate physical violence. For example in R v Knight (1988) 35 A Crim R 314 the accused made threats to do violence over the phone to a judge, to a magistrate, and to a police officer. 35 Some description of the facts in this case bears quoting as I consider it is instructive for the present purposes. His Honour Justice Lee stated the facts as following: "The matter came before Mr Henderson SM on 8 July 1983 and he found the appellant guilty. The appellant appealed to the District Court and the appeal came before his Honour Judge Muir on 24 May 1984 who dismissed the appeal. From about August 1983 Mr Henderson SM began to receive phone calls at his home. Some were taken by himself, some by his daughter, some by his wife. The calls were both threatening to the lives of himself and other members of his family and also extremely abusive. From about 9 June 1984 that is shortly after the appeal was heard by his Honour Judge Muir, Constable Rowles and other persons in the police force received telephone calls threatening death or bodily injury to the Constable and also containing much abuse and insult. …… his Honour himself began to receive calls at his home and at his Chambers. The calls were of the same nature. …… the appellant [was charged with] seven charges of assault, all of which were based entirely upon words alleged to have been used by a caller on the phone to either Constable Rowles, Mr Henderson SM or the Judge…. I choose, merely by way of illustration of the nature of the calls, the following call made on 24 December to Mr Henderson's home. I should mention that Mr Henderson's daughter picked up the phone and heard certain words used. But, the following are the words which Mr Henderson himself heard used: "Why don't you have your number changed? Fucking bitch. You fucking idiot. Your front gate isn't strong enough. You fucking bitch. Your father's a dead man. Are you his fucking wife or his fucking daughter? You fucking bitch. I had him in my rifle sights. He is fucking dead man. Are you his fucking wife or his fucking daughter? You fucking bitch? He is a fucking dead man. We are going to put a bomb at his front gate. I will poke your fucking eyes out with a screwdriver." Then there is a reference to the mother and the daughter in the most obscene fashion. It goes on: "The whole police force won't save you. You're a dead man." Further abuse followed then: "You sit up there. You think you're God. I'm going to shoot you. I was going to shoot you last night but I will leave it to tonight [sic] of your party." The Hendersons were having a Christmas party on this evening" (at 315). 36 Those were the threats that had to be dealt with in that particular case and the question was whether, over the phone, they constituted an assault. Justice Lee held that: "…… the evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were mere threats which may have been executed at any time, if at all" (at 317). 37 His Honour then referred to the decision of Barton and Armstrong (1969) 2NSWR 451 and quoted, as follows, from that case: "Taylor J, after referring to the fact that the mere taking of a threat, whether the threat is to be carried out immediately or not is enough to raise fears in a person's mind, asked the question: How immediate does the fear of physical violence have to be? Of course, the critical question is: How immediate is the violence offered by the threat to be and I do not take his Honour to be saying otherwise. He went on, "In my opinion, the answer is it depends on the circumstances". It seems to me that a threat of violence made over the phone could be a threat of immediate violence in given circumstances, and thus an assault, and accordingly I am not to be taken as saying that merely because the threat is made by phone it could not thereby constitute an assault" (at 317 – 318). I refer also to the case of Masters v Watt (1992) 10 Petty Sessions Review, 4507 which went on appeal before his Honour Justice Sharpe of the Supreme Court of New South Wales. He considered an assault charge on a taxi driver. He held that threats can constitute an assault, but in the circumstances of that case, where the offender's threat was made in conjunction with his feeling inside and outside of his jacket, he was of the view that it could constitute an assault. In so finding, he also considered the case of Barton and Armstrong: "Then in 1969 Taylor J in considering an interlocutory application in Barton and Armstrong (1969) 2 NSWR 451, held that threats uttered over the telephone were capable of constituting an assault, and are not necessarily properly categorised as "mere words". It requires a consideration of the circumstances in which they are spoken" (at 4509). 38 He then referred to the case of R v Knight: "In R v Knight (1988) 35 A Crim R 316, Lee J, in a judgment with which Carruthers and Love JJ concurred, held that where threats had been made but there was no evidence that they were of immediate violence, there was no assault.... Clearly then "mere words" cannot constitute an assault. However when words are such that they could create in the mind of the victim a reasonable apprehension of immediate physical violence, then the offence of assault is capable of being established. The evidence of the taxi driver, of the defendant's feeling inside and outside his leather jacket whilst directing him along a darkened section of the roadway having bushes on either side, and uttering words of an intention to kill all combined to a factual situation capable of being construed as violent words creating an apprehension of immediate physical violence" [my emphasis] (at 4510). 39 Justice Sharpe then observed that, on the basis of the authorities: "…… "mere words" unless invoking apprehension of immediate physical violence cannot constitute an assault, but it is perhaps misleading to use such a term as "mere words". Before words as such could be considered to constitute an assault they would need to be aggressive and/or violent. The test then is whether or not they firstly put the victim in apprehension of physical violence, and secondly, in apprehension of immediate physical violence." (at 4510) 40 It is thus clear from these decisions that words alone, to constitute an assault, must put the victim in fear of immediate physical violence. 41 Of course, in the case before this Court, we are not dealing with either an offence of armed robbery or an offence of assault. Whilst the caselaw discussed above, provides some useful guidance, I conclude that there is no unambiguous, clear and compelling authority directly on point, relevant to the particular charge of intimidate a police officer. 42 Given the ambiguity in the matter, and the difficulties in determining to what extent the cases referred to above can be applied in the particular context before me, I refer again to the general considerations relevant to the construction of s 5(2)(b) of the Act. In this regard, I refer in particular to the remarks of Senior Judge Murrell in Ranse that: "Section 5(2)(b) should be narrowly construed. It removes a benefit which would otherwise accrue to an offender, ie the opportunity of participating in a Drug Court program. Ambiguous provisions of the Act should be construed to allow drug dependent offenders the benefit of an opportunity to seek to participate in a Drug Court program" (at 3, para 12). 43 I also refer again to the Second Reading Speech which expressly countenanced that "unarmed robberies, provided there is no violence" would be eligible offences under s 5 of the Act. This raises some question over exactly how the concept of violence should be construed in the Drug Court Act, given that robbery itself is held in the case law to require an element of violence, yet the Second Reading Speech puts robbery in the category of "eligible offences", providing there is "no violence". This raises the further question whether the authorities dealing with the concept of "violence" alone, are as relevant to the concept of "violent conduct" under s5 of the Drug Court Act. 44 I further refer, in particular, to the observations of Justice Meagher in Ebsworth that one requires the two elements of a threat, coupled with an offensive weapon, "together", to constitute "violent conduct". 45 I am therefore of the view, that in the absence of compelling authority to the contrary, and construing the legislation strictly in accordance with Ranse, which approach was approved by the Court of Appeal, I am not prepared to hold that the elements of a charge of intimidate a police officer necessarily involves "violent conduct" so as to render an offender ineligible pursuant to s 5(2)(b) of the Act. The conduct test 46 If I be wrong in terms of my consideration of the elements test, I now turn to consider the conduct test, namely whether the conduct of the particular offender, Mr Lapa, constitutes "violent conduct" for the purposes of s5(2)(b) of the Act. 47 I note that the actual conduct in this case was threats. Indeed, one would have to say very serious threats. The police clearly took them very seriously, given the offender's criminal associates and his past violent behaviour, as stated in the facts, towards police. Also, the threats were made directly to the police officers, not over the phone. 48 However, the threats were made at the police station, following the arrest of the offender, hence in a context where there was no immediate capacity for him to carry them out. 49 I further note, in this regard, that whilst the offender earlier had possession of a knife whilst in the car, he was unarmed at the time of the making of the threats at the police station. 50 The threats do not therefore have that immediacy demonstrated in the cases of armed robbery where the capability, or perception of capability, is required in the carrying out of the threat on the spot. They also lack that immediacy which was demonstrated in Masters v Watt in the context of a charge of assault, where the taxi driver was in a situation where there was again that perception of capability of carrying out the threats on the spot. 51 In the present case, the offender was in the safety of a police station with several police on hand. There could clearly be no immediate apprehension of physical violence from the offender's threat. The apprehension is of future violence. The question remains therefore whether the police apprehension of future violence from the offender's threat could constitute "violent conduct" under s 5(2)(b). 52 I consider that the offender's words whilst highly intimidating to police, and using the language from the decision of R v Knight, nonetheless constituted "mere threats which may have been executed at any time, if at all". For these reasons, I consider they cannot be characterised as "violent conduct" under s 5(2)(b). 53 Accordingly, I am satisfied that the offender is an eligible person under s 5 and s 7(2)(a) of the Drug Court Act. The question now becomes whether it is appropriate under s 7(2)(b) for him to participate in a program under the Act having regard to his criminal antecedants. ********** 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.