Drug Court of New South Wales CITATION : R v Horwood [1999] NSWDRGC 8 Crown PARTIES : HORWOOD, Darren Steven FILE NUMBER(S) : 0238/1999 of 1999 CORAM: His Honour Judge Neil Milson at 1 CATCHWORDS: Drug Court Act 1998 (NSW) - Meaning of Eligible Person - No Useful Purpose - Violent Conduct :- Whether the accused is an "eligible person" under the Drug Court Act 1998 - whether an offence of malicious damage by fire involved "violent conduct". LEGISLATION CITED: Drug Court Act 1998 (NSW) R v Ranse [1999] NSWDRGC 2 ; CASES CITED: R v Sloane [1999] NSWDRGC 3 ; R v Armanios [1999] NSWDRGC 5 ; The Queen v De Simoni (1981) 147 CLR 383 considered. DATES OF HEARING: 18/08/99 DATE OF JUDGMENT: 18 August 1999 J. Pheils, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: G. Bond, Aboriginal Legal Service (NSW) JUDGMENT: 1. The prisoner, Darren Steven Horwood, has been charged before the District Court with an offence under s195(b) of the Crimes Act 1900 of malicious damage by means of fire. The matter has been referred to the Drug Court and the present argument is to see whether the prisoner is an eligible person within the meaning of s5(2) of the Drug Court Act 1998. 2. Section 5 defines an eligible person and in subsection (2) of that section it provides that a person is not eligible if the person is charged with a variety of offences, including in part (b) an offence "involving violent conduct or sexual assault". 3. The Crown argument is that the present offence is one that involves violent conduct. This Court has considered violent conduct in a number of cases, some of which have been referred to me today, particularly those of R v Ranse [1999] NSWDRGC 2 and R v Sloane [1999] NSWDRGC 3 and there have been others such as R v Armanios [1999] NSWDRGC 5. 4. There has been no formal definition of violent conduct. Reference has been made to dictionary definitions and here I will use the work of her Honour in Sloane, in paragraph 14 and following, "In some context ....accompanied by the exercise of violence". In the Macquarie dictionary, the definition of violence include, "Rough force in action ... fury, intensity, severity". These dictionary definitions of violence or violent do emphasise that use of actual physical force is involved. In s5(2)(b) violent is an adjective qualifying conduct. The expression "violent conduct" suggests the actual use of physical force. 5. Those decisions make it quite clear that it is not the nature of the offence which of itself constitutes violent conduct. It is not because it is an offence of robbery or malicious damage by fire that it must therefore include violent conduct, it is what the offender has done that constitutes violent conduct. It would appear from all those decisions that one should look at the actual conduct of the person. 6. The behaviour of the prisoner, which is admitted and admitted as behaviour which was reckless and therefore malicious within the meaning of the Crimes Act 1900 is described in the statement of facts in these terms. "....... about 7 o'clock the same day, the accused walked from the bedroom with his belongings and placed them outside the unit door. Ms Hutman, realising he had not taken his boots, threw them onto his other belongings which were still outside the door and then closed the door". 7. This is the description of what the prisoner did. "Shortly after, the accused smashed the kitchen window of the premises from outside with one of his boots. Ms Hutman left the premises to use a phone at a nearby service station. Shortly after, the accused was observed to smash windows on the sides of the unit with a large stick. While smashing the windows, the accused yelled "Fucking how could you do this, fuck you, Janelle". The accused yelled this over and over. The accused then stopped smashing windows. About 10 minutes later smoke was observed to be coming out of the door of the unit by a neighbour. The neighbour raised the alarm and at this time, Ms Hutman has returned to her premises. Neighbours had gathered at her door with buckets of water. The door was opened and a small fire near a smashed window was extinguished by the residents. They then realised that a much larger, overpowering fire was emanating from the rear bedroom of the premises and all parties retreated. Neighbours attempted to extinguish the blaze by throwing buckets of water through the windows from the outside. Whilst one neighbour was attempting to extinguish the fire, the accused was heard to yell, "Burn you fucking bitch, burn", which he said over and over." 8. I have considered the argument relation to The Queen v De Simoni (1981) 147 CLR 383 and the fact that in sentencing, a court cannot take into account circumstances of aggravation which have warranted a conviction for a more serious offence. I accept that it would be wrong to infer that this is an offence of malicious damage by fire with intent to cause harm or injury to a person but it remains that the prisoner's behaviour or conduct at the time must be considered for the present purposes. 9. I am not prepared to hold that an offence which involves damage to property or violence involving property of itself could not come within the meaning of "violent conduct" nor that in all circumstances it should come within the meaning of "violent conduct" under the Drug Court Act. What has to be considered is the behaviour or the conduct of the individual at the time of the commission of the offence being considered. In this case I accept that saying "Burn, you fucking bitch, burn" might be a process of personalising the fire as opposed to suggesting that an individual would be harmed, but the prisoner's behaviour in smashing windows with his boot, with a stick, and even while others are attempting to put the fire out, his yelling encouragement of the fire is in my view a continuous course of conduct of great violence that does amount to "violent conduct" within the meaning of s5(2) of the Drug Court Act. 10. For those reasons, I hold that the prisoner is not an eligible person. The matter is to be remitted to the District Court. 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.