Drug Court of New South Wales CITATION : R v Tewake [2005] NSWDRGC 2 PARTIES : Crown Tewake, Dalton FILE NUMBER(S) : 217 of 2005 CORAM: His Honour Senior Judge Roger Dive CATCHWORDS: Meaning of Eligible Person :- whether a person charged with an offence involving "violent conduct" can be an "eligible person". Drug Court exercising ordinary jurisdiction of Local Court – such power available under s 24 Drug Court Act. Offence involving "violent conduct" can be dealt with under s 24. LEGISLATION CITED: Drug Court Act 1998 (NSW) S 5 "eligible person" and "offence involving violent conduct" S 7 "Persons accepted into program" S 24 Jurisdiction of Drug Court Chandler v The Director of Public Prosecutors [2000] NSWCA 125; CASES CITED: Bull v Attorney General of NSW [1913] 17 CLR 356; R v Buttigieg [2002] NSWDRGC 2 DATES OF HEARING: 15 November 2005 DATE OF JUDGMENT: 22 November 2005 Regina: R. Ranken, Director of Public Prosecutions LEGAL REPRESENTATIVES: Offender: I. Rodgers, Legal Aid Commission JUDGMENT: 1 HIS HONOUR: Mr Tewake has been referred to the Drug Court under s 6 of the Drug Court Act 1998 . Twelve charges have been referred, comprising mainly dishonesty offences and offences of breaching an apprehended violence order; the later committed by attending premises he is not allowed to approach. Mr Tewake is seeking to have those matters dealt with under s 7 of the Drug Court Act, which allows a sentence is imposed, and then suspended whilst a Drug Court program is undertaken. 2 Mr Tewake has also pleaded guilty to a charge of assaulting a police officer in the execution of his duty, and that charge has led to this hearing as to whether Mr Tewake can be admitted into a Drug Court Program, given that offence involves 'violent conduct'. Section 5 of the Drug Court Act prohibits offences involving violent conduct being dealt with under s 7 of the Drug Court Act. 3 The facts of the assault are as follows. When arrested, Mr Tewake was lifted off the ground and placed in the rear of a caged police vehicle. At that time Mr Tewake has kicked out, striking Constable Ireland in the leg. Mr Tewake was intoxicated at the time. It is conceded by the defence that the assault on the police officer involved violent conduct, and that Mr Tewake cannot be dealt with under s 7 of the Drug Court Act for that offence. The question today is whether the matter can be dealt with under any other provision in the Drug Court Act, thereby still allowing Mr Tewake the opportunity of taking part in a Drug Court Program. General issues regarding the Drug Court Act 1998 4 Before I turn to the detail of the arguments in this matter, there are some general observations that should be made regarding the Drug Court Act and the operations of this court. The Drug Court Act is an innovative piece of legislation, described as "an exciting new criminal justice initiative" in the second reading speech before the New South Wales Parliament in 1998. The Act grants the Drug Court a broad jurisdictional reach, and it is not uncommon for the Drug Court to deal with, at the one time, a person who has pleaded guilty to strictly indictable offences, pleaded guilty to purely summary matters, and who has also appealed to the District Court against sentences already imposed in the Local Court. So in the one sentencing hearing, the Drug Court may exercise the general jurisdiction of the District Court, the appeal jurisdiction of the District Court, and the summary jurisdiction of the Local Court. 5 The objectives of the Drug Court are set out in s 3(1) of the Drug Court Act, and they set an ambitious agenda for this Court. Those objectives are: (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies. 6 Those objectives are to be achieved 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." 7 There can be no doubt that the Drug Court Act is beneficial legislation, and it has long been established that it should be interpreted accordingly. The concept of legislation having beneficial purposes was referred to in Chandler v DPP [2000] 113 A Crim R 196, which in turn referred to Bull v Attorney-General of New South Wales [1913] 17 CLR 356, where the concept was explained (at page 384) in the following way; "The correct way of reading legislation where there is such an ambiguity is to construe them generously. Not that the true signification of the provision should be strained or exceeded, but that it should be construed to give the fullest relief with which the fair meaning of its language will allow." 8 I think it would also be fair to say that Parliament, in creating such new and innovative jurisdiction, may not have anticipated the complexity and variety of situations offenders, especially drug offenders, can get themselves into. The Drug Court has to deal with offenders who have multiple offences in different jurisdictions, and who may have parole, which is either ongoing, or has been revoked. Participants may be on good behaviour bonds, or have breached such orders, or may be doing Community Service Orders, Periodic Detention or Home Detention. Or perhaps they have breached those orders as well. Any one offender may have multiple sentencing complications. There are many twists and turns before eligibility, appropriateness, and even availability can be determined, so it would be understandable, indeed inevitable, that not all situations were fully anticipated in the drafting of the legislation. 9 Returning to the case at hand, there are a number of issues to be determined. Is Mr Tewake simply ineligible? 10 As Mr Tewake has been charged with an offence of violence, does that simply prevent him being dealt with under s 7? 11 A reference to the relevant sections of the Drug Court Act is a convenient starting point, and the relevant parts of sections 5, 7 and 8 provide: 5 Definition of "eligible person" (1) A person is an eligible person if: (a) the person is charged with an offence, other than an offence referred to in subsection (2), and (b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted, be required to serve a sentence of full-time imprisonment, and (c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and (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, and (e) the person satisfies such other criteria as are prescribed by the regulations. (2) A person is not an eligible person if the person is charged with: (a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Chapter 5 of the Criminal Procedure Act 1986) is capable of being dealt with summarily, or (b) an offence involving violent conduct or sexual assault, or (c) any other offence of a kind prescribed by the regulations. 7 Persons accepted into program (1) This section applies to a person who has been referred to the Drug Court under section 6. (2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters: (a) that the person is an eligible person, (a1) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence, (b) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act, (c) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations, (d) …. (e) …. (f) …. (2A) The Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999. (3) …. (3A ….) (4) A person who is convicted and sentenced by the Drug Court under this section with respect to an offence for which the person has been referred to the Drug Court under section 6 may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence. (4A) …. (5) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section. 8 Persons not accepted into program (1) This section applies to a person who has been referred to the Drug Court under section 6 but whom the Drug Court has not dealt with under section 7. (2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters: (a) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence, (b) that the person consents to being dealt with under this section. (2A) The Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999. (3) If the person does not consent to being dealt with under this section or in such other circumstances as the Drug Court may determine, the Drug Court is to refer the person back to the referring court. (3A) In the case of a person who has been referred to the Drug Court for 2 or more offences by 2 or more referring courts, the Drug Court may refer the person back to any one of the referring courts to be dealt with: (a) for the offences for which the person was referred by that court, and (b) for such of the other offences as are within the criminal jurisdiction of that court. (3B) In dealing with a person for an offence referred to in subsection (3A) (b), the court to which the person is referred back is taken to be the referring court for the purposes of subsection (4). (4) If the Drug Court refers a person back to the referring court, the proceedings against the person are to be continued before the referring court at a time and place specified in the order, as if: (a) the person had not been referred to the Drug Court, and (b) the proceedings had merely been adjourned to the time and place specified in the order. (5) A person who is convicted and sentenced by the Drug Court under this section with respect to an offence for which the person has been referred to the Drug Court under section 6 may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence. (6) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only. 12 Without any passion for the proposition, but in the proper pursuit of assisting this Court to comply with all aspects of the Drug Court legislation, the Crown argues that Mr Tewake is simply not an eligible person for a Drug Court Program, and therefore should be returned to the Local Court from whence he came, to be there dealt with for all 12 charges in the ordinary way. The defence suggests otherwise. 13 The first Crown submission is that a person can only be accepted on to a Drug Court Program if, and only if, the court is satisfied that the person is an eligible person as defined in s 5. Section 5(2)(b) provides that a person is not an eligible person if the person is charged with an offence involving violent conduct or sexual assault. 14 Section 7 allows the Court to "deal with a person under this section" , and the Drug Court deals with a person under s 7 by convicting and sentencing the person under the Crimes (Sentencing Procedure) Act 1999 (s 7(2A) . 15 In my view it is quite clear that the moment in time at which the person must be an eligible person for the purposes of s 7 is at the time of dealing with the person under that section, that is, at the time of imposing the initial sentence. It is not uncommon for a person to be referred to the Drug Court and their eligibility to be uncertain. A perceived barrier to entry may be resolved in a manner favourable to the person, and eligibility is then achieved. This may occur because, for example, the court has held a hearing and decided that the person does usually reside within the catchment area of the Drug Court, or an offence alleging violent conduct is dealt with at another court, or perhaps that allegation is withdrawn. The first Crown submission is rejected. 16 The defence suggests that the offence of violence can be dealt with under s 8 of the Drug Court Act, and Mr Tewake's eligible offences then be dealt with under s 7. The Drug Court has for many years overcome barriers, such as this issue in Mr Tewake's case by dealing with offences involving lower levels of violence (and which therefore cannot be dealt with under s 7) under s 8 of the Drug Court Act. As the late Senior Judge Milson observed in R v Buttigieg [2002] NSWDRGC 2: "…it is quite clear that it was not the intention when the Act was introduced that minor matters …exclude people's entry. What was intended was that people who have a violent disposition be prevented from entering into a Drug Court program." 17 The defence suggests that there are ways around the problem, in that the Court could deal with the "assault police" matter under s 8 of the Drug Court Act, and, only if it is the appropriate adjudication, sentence him in such a way that he is still available in the community, and able to take part in a Drug Court Program attached to his other offences. 18 Section 8 applies to persons who have been referred to the Drug Court under s 6, but whom the Drug Court has not dealt with under s 7. So the defence suggestion is that the Court could firstly deal with the offender for the assault police matter under s 8, before imposing sentences under s 7. 19 There are two problems with that submission. Firstly, the structure of the Act, and the headings given to those relevant sections, suggest that s 7 provides the necessary sentencing powers for "Persons accepted into program" and s 8 provides for "Persons not accepted into program" . The Act is quite consistent in referring to "persons" and not "charges" or "offences" , and, as Mr Ranken has submitted, the headings to sections, whilst not part of the section, can be considered in the interpretation of an Act. 20 Secondly, the rather troublesome s 8(5) includes a prohibition against dealing under s 8 with offences referred to in s 5(2) (ie an offence involving violent conduct or sexual assault). Why s 8 is restricted in this way makes an interesting question. Section 8(5) appears to simply mirror 7(4), which includes a prohibition against dealing with violent conduct offences or sexual assaults for good reason, as persons being dealt with under s 7 must be eligible persons. Section 7(4) prevents other, non-referred offences which involve violence being swept into a Drug Court Program via an alternate route. The same rationale for the inclusion of the troublesome words in s 8(5) does not logically apply to offences being finalised by the Drug Court for a person who has not, and is not going to be, dealt with under s 7. Nevertheless, those troublesome words are there, and so the Drug Court cannot, in my view, deal with an offence involving violent conduct under s 8. Exercising Local Court jurisdiction 21 There is another possibility. It is suggested that the Court could exercise the jurisdiction of the Local Court, as bestowed on the Drug Court in s 24 of the Act, and sit as a Local Court to deal with the "assault police" offence, if appropriate, in a non-custodial fashion. In my view both s 24 and s 26 are relevant here: Section 24 provides: 24 Jurisdiction of Drug Court (1) The Drug Court has the following jurisdiction: (a) the criminal jurisdiction of the District Court, (b) the criminal jurisdiction of a Local Court, (c) such other jurisdiction as is vested in the Drug Court by this or any other Act. (2) For the purpose of enabling it to exercise its jurisdiction, the Drug Court has the following functions: (a) all of the functions of the District Court that are exercisable in relation to its criminal jurisdiction, (b) all of the functions of a Local Court that are exercisable in relation to its criminal jurisdiction, including all the functions exercisable by a Magistrate under the Criminal Procedure Act 1986 or the Bail Act 1978 , (c) such other functions as are conferred or imposed on it by or under this or any other Act. (3) For the purposes of section 98 (1) (b) and (c) of the Crimes (Sentencing Procedure) Act 1999: (a) the Drug Court is a court of like jurisdiction in relation to the District Court, and (b) the Drug Court is a court of superior jurisdiction in relation to a Local Court. Section 26 provides: 26 Court proceedings (1) This section applies to proceedings before the Drug Court in the exercise of its jurisdiction under this Act, but does not apply to proceedings before the Drug Court in the exercise of the criminal jurisdiction of the District Court or the criminal jurisdiction of a Local Court. (2) Proceedings before the Drug Court are to be conducted: (a) in accordance with the directions of the Judge presiding in the proceedings, and (b) subject to paragraph (a), with as little formality and technicality, and with as much expedition, as the requirements of this Act and the regulations and the proper consideration of the matters before the Court permit. (3) The Drug Court is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate. (4) The Drug Court may adjourn its proceedings from time to time. 22 In my view s 24(1) quite clearly gives the Drug Court the ordinary jurisdictions of both the District Court and the Local Court, in addition to its special jurisdictions under the Drug Court Act. 23 The next question is whether that jurisdiction is somehow limited, and Mr Ranken has argued that unless a more limited meaning is attributed to s 24, this court could embark upon summary, or even jury, trials. 24 Jurors may rest easy, as that is not what is being considered here. Mr Tewake has been charged with one offence amongst 12 offences which renders him, technically, to be an ineligible person. I use the word "technically", as the criminal act involved in the assault police offence being considered is not so serious that it appears he should be prohibited from taking part in a drug treatment program in the community. If he is dealt with in the ordinary way for that offence, it is perhaps unlikely, on the limited information before me, that he would be sentenced to a term of imprisonment which would render him unavailable for a community-based Drug Court treatment plan. 25 In deciding as to how widely the Drug Court should interpret s 24, it is instructive to look at how the problem could have been otherwise addressed. If, for example, his legal advisers, or the magistrate in the Local Court, had been aware of the problem the "assault police" charge would create for Mr Tewake in the Drug Court, then that Local Court could have separated out that charge, and dealt with it. If the charge had been dealt with by way of an adjudication that left Mr Tewake free to take part in a Drug Court Program, then there would be no issue, and no problem in this jurisdiction at all. 26 The Drug Court could still, today, simply adjourn the "assault police" charge to the Local Court here at Parramatta, and Mr Tewake could be taken into the court room next door, and again, if dealt with by the Magistrate in a range of ways, he could be back here and available for a Drug Court Program within perhaps the hour. The Crown has argued that adjournments to resolve the eligibility issues facing applicants should not be granted if they are clearly ineligible when referred. I cannot agree with that. Adjournments are frequently granted for very good reasons before eligibility and appropriateness for a Drug Court Program are determined, including on proper application by the Crown, and the ordinary legal principles regarding adjournments must apply, including adjournments to allow uncertainties or obstacles to be addressed. 27 In my view the Drug Court can exercise the ordinary criminal jurisdiction of the Local Court, and this Court can, instead of sending him to the Local Court room next door, convene as a Local Court in this court room for the purposes of considering his sentence under the Crimes (Sentencing Procedure) Act 1999 . Having formed the view that the Drug Court can take such a course, I will also indicate that I am prepared to take such a step. 28 Twelve charges have been referred to the Drug Court and are before the Drug Court. One of those charges should not have been. It would clearly be in the interests of justice for all those charges to remain before the one judicial officer, and for the charge which could make Mr Tewake an ineligible person to be dealt with here, perhaps in a way which will see him available for a Drug Court Program. 29 It may be that if this court was being asked to undertake a different aspect of Local Court or District Court jurisdiction, such as to hold a defended hearing regarding an offence alleging violence, then the Drug Court may well not be prepared to do that. There is a real difference between this court having a broad jurisdiction, and deciding to exercise it, given the objectives of the Drug Court legislation and the practical issues involved. 30 Mr Ranken has argued that an expansive interpretation of s 24 negates the need for s 8, and suggests such a wide interpretation is not available. I disagree. Section 8 appears to sets out a specific jurisdiction for the Drug Court to deal with offenders to finality who have not been accepted onto the program. The section also provides the "how" and "where" for persons returning to referring courts if they are not accepted onto program. So the section sets out explicit powers, but does not thereby limit the general jurisdictional powers of s 24. 31 I agree with Mr Ranken that this Court should not be taking on work, such as defended hearings, which would distract it from its prime responsibilities. However the possibility that the Court could distract itself by undertaking such work should not negate the power to make sensible, practical use of s 24. 32 Accordingly, at a suitable time, and if Mr Tewake takes no objection, the Drug Court will convene as a Local Court to deal with the "assault police" charge. ********** 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.