Drug Court of New South Wales CITATION : R v Brown [2001] NSWDRGC 6 Regina PARTIES : -v- BROWN, Jason John FILE NUMBER(S) : 0074 of 2000 CORAM: His Honour Judge Neil Milson Drug Court Act 1998 (NSW) - Joint Enterprise - Violent Conduct :- Eligibility for programs under the Drug Court Act 1998. Requirement that offences not be one "involving violent conduct" - Whether violent conduct by a co-offender in a joint enterprise constitutes an offence involving violent conduct. CATCHWORDS: Drug Court Act 1998 (NSW) S5(2)(b) - "offence involving violent conduct" LEGISLATION CITED: Drug Court Act 1998 (NSW) R v Ranse [1999] NSWDRGC 2; R v Sloane [1999] NSWDRGC 3; Chandler v DPP [2000] NSWCA 125, (2000) 113 A Crim R 196; CASES CITED: McAuliffe v The Queen (1995) 183 CLR; Tangye v R (1997) 92 A Crim R 545; Osland v R (1998)197 CLR 108; R v Markby (1978) 140 CLR 108 DATES OF HEARING: 25/06/2001 DATE OF JUDGMENT: 25 June 2001 Regina - R. Shafiq, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Accused - H. Grahame, Legal Aid Commission (NSW) JUDGMENT: BACKGROUND 1. The applicant before the court seeks entry to the Drug Court. He is charged with one count of robbery in company under s97(1) of the Crimes Act 1900. Initially the Court was to be asked to determine if it is appropriate for the applicant to be sentenced under s7(2) of the Drug Court Act 1998 . Subsequently the decisions became those of determining if the person is an "eligible person" under s5(2), and if so, then whether the Court should exercise its discretion under s7(2) to allow him to enter a Drug Court program. Written submissions have been considered on behalf of the applicant and the Director of Public Prosecutions as to the first of those decisions. 2. E ach agree that the issues of law are i. Whether the offence of Robbery in Company as charged is an "offence involving violent conduct"; and ii. Whether an interpretation of the words "charged with an offence involving violent conduct" for the purposes of s5(2) must be restricted to the particular conduct of the accused as opposed to an applicant's liability for the actions of his co-offenders. ELIGIBLE PERSON 3. Section 7(2) of the Drug Court Act of 1998 provides: 7 (2) The Drug Court may, under this section, convict and sentence a person who has pleaded guilty to the offence for which the person has been referred (whether before the referring court or the Drug Court) if, and only if, it is satisfied as to each of the following matters: (a) that the person is an eligible person, (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)…… Section 5 defines an eligible person as follows: (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) …. (c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and (d) …. (e) ….. (2) A person is not an eligible person if the person is charged with: (a) … (b) an offence involving violent conduct or sexual assault, or (c) …... THE OFFENCE 4. The allegation to which the offender has pleaded guilty is that with two co-offenders he entered the Australia Post Shop at Concord West. There were employees in the shop and customers lined up at the counter. The defendant and co-offenders approached the counter area. One attempted to jump over the counter and grab a sum of money from the cash drawer, but was unsuccessful. A second offender came around to the staff side of the counter and the third offender was standing in the shop area with some customers. Soon after the men entered the shop two customers had been grabbed from behind and pushed to the floor by one of the offenders. It is not clear who did this, but as I understand the evidence it is not suggested that it was the applicant. One customer was warned to "get down, and stay on the ground and don't do anything" and the other told "don't try to get outside". One offender pulled his sleeves over his hands and jumped over the counter and joined the second. Employees of the shop were ordered to "get down", and they did so while two of the offenders removed cash and postage stamps from the cash drawer. 5. All three turned and ran from the shop, and one dropped a book of stamps that had been taken from behind the counter. The fingerprints of the applicant were found on that book of stamps. AN OFFENCE INVOLVING VIOLENT CONDUCT 6. In the decisions of R v Ranse [1999] NSWDRGC 2, R v Sloane [1999] NSWDRGC 3, and Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196 the nature of an offence involving violent conduct has been considered. 7. From those cases it is possible to distil the following principles. i. When considering "an offence of violent conduct" it is the elements of the charge which are significant, not the particular conduct. (Hodgson CJ in Eq. in Chandler , supra, para 34 - 37). ii. The elements to constitute the crime of robbery are: 1. The unlawful taking and carrying away of property of some value; 2. from the person of another, or in his presence, or from under his immediate and personal care and protection; 3. against his will; 4. either by force or by putting him in fear; and 5. with the intention of permanently depriving a person of such property. (Powell J in Chandler) 6. Because this charge is under section 97 rather than section 94 as was the case in Ranse and Sloane , an additional element is that the offender was armed with an offensive weapon or instrument, or in company with another person. iii "Violence" generally refers to the application of rough, strong, physical force (Hodgson CJ in Chandler). iv. An offence of robbery that involves a threat (rather than the actual use of physical force) is not an "offence involving violent conduct." (Murrell J in Sloane ) JOINT ENTERPRISE 8. I have been referred to McAuliffe v The Queen (1995) 183 CLR 108 at 114, Tangye v R (1997) 92 A Crim R 545, R v Markby (1978) 140 CLR 108 and from them the principles of law that are relevant might be distilled as follows. 9. The agreement required in a joint criminal enterprise is an understanding or arrangement between the parties amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and it may be inferred from all the circumstances. If one or other of the parties to the understanding does all of the things necessary to constitute the crime, or if they do those things between them, they are all equally guilty of the crime regardless of the part played by each of them in its commission. 10. Where: (i) instead of the crime previously agreed, another crime is committed by one or other [or others] of the parties to that joint criminal enterprise; or (ii) where all played some part in committing that other crime; and (iii) the Crown has established that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime; all parties are equally guilty of that other crime regardless of the part played by each in its commission. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk, not merely a slender chance, that it will be committed. A person engaged in a common enterprise with another will be liable for acts of the other if those acts can be regarded as "no more than an unexpected incident in carrying out the common design". 11. " Principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose is committed by one or more of them .": Osland v The Queen (1998) 197 CLR 316 at 27. 12. It is argued on behalf of the applicant that the physical force which was used, and which cannot be attributed directly to the applicant was not part of the actus reus of the offence committed, as it was to bystanders, unbeknown to the victim and playing no part in his decision to acquiesce to the robbery. It is suggested that this is a separate assault for which no person has been charged, and it should therefore not be considered as "violent conduct" in the robbery. 13. I do not accept this, given that it occurred during the process of the robbery. I find rather that the force or violence was intended at least in part to prevent those persons escaping and calling for help or to prevent them interfering in the crime. Given the offenders' aggressive behaviour, it would be very difficult to draw any conclusion other than that there was a substantial risk that the use of physical force would be an incident of the robbery they agreed to commit. THE GENEROUS CONSTRUCTION OF BENEFICIAL LEGISLATION 14. Whether as stated in Ranse and Sloane ( Murrell J in Sloane ) that being beneficial legislation the Act ought to be construed generously, or as stated in Chandler (Hodgson CJ in Chandler at para 46) that the provisions which exclude a person from the benefit of the legislation should be strictly construed, there appears no doubt as to the general principle. This means " not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.": Bull v. Attorney General (NSW) (1913) 17 C.L.R. 356 at 384. 15. However in Chandler Hodgson CJ in Eq said at paragraph 49, "While I accept that the Act appears to be mainly directed at benefiting people who commit crimes to feed their habit, I do not think that consideration has any significant bearing on the construction of s5(2)(b); although plainly it would be of relevance to the exercise of the Drug Court's discretion under s7." 16. This appears to contrasts with the beneficial interpretation given by Murrell J, Ranse and Sloane , when making decisions on under s5(2) and apparently supported by Hodgson CJ in Eq. in his discussion of those decisions in Chandler . It is argued on behalf of the applicant that one of the specific purposes of s5(2)(b) is to restrict entry of persons who could pose an unacceptable risk to the community if they were to participate in a Drug Court program, and that risk must be assessed individually. The Court first looks to the elements of the offence, and then if necessary to the particular circumstance of the offence to make this assessment. 17. I have been referred to several other unreported decisions of the Drug Court. Of particular relevance is a matter of R v Ebsworth on 13 June 2001 in which Barnett J. sitting in the Drug Court considered this question. In that case the applicant had been armed with a baseball bat and one of several co-accused persons had pushed and slapped one of the victims. Barnett J found on the balance of probabilities that it was not the applicant who had used the physical force to the victim. In those circumstances and in the light of Murrell J's comments in Sloane about beneficial legislation His Honour decided one would have to look particularly at the conduct of the applicant, and, by inference, as that conduct did not involve violence, the applicant was not excluded by s5(2). DECISION 18. I do not accept this approach is correct. It is incongruous when one considers what would follow the finding of eligibility. Having so found, (and the other considerations of s7(2) being met) one would the proceed to sentence the applicant in the Drug Court. The Drug Court in its sentencing roles remains a court exercising criminal jurisdiction and applying the same principles as other criminal courts. The offence for which the offender would be sentenced would be the offence charged under s97 of the Crimes Act 1900. The principles relating to a joint criminal enterprise must then be applied to the factual circumstances, and the offender sentenced for the offence and the circumstances of it. Thus the court would be sentencing a person as a principal in an offence which did involve "violent conduct", although offences which involve violent conduct are excluded from the scheme of the legislation 19. Whilst the Drug Court is given a discretion to consider the appropriateness of an eligible person to enter a program, it has no discretion when it comes to the offences excluded by s5(2). This applicant has been charged with an offence which includes as one of its alternate elements "violent conduct" as defined by the cases referred to earlier. In the circumstances of this case that element is present, and for those reasons I have no discretion to consider the matter further. I find that the applicant 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.