Drug Court of New South Wales CITATION : R v Rolfe [2001] NSWDRGC 2 Regina PARTIES : -v- ROLFE, Shaine FILE NUMBER(S) : 0046 of 2001 CORAM: His Honour Judge Neil Milson Accused's Antecedents - Discretion - Drug Court Act 1998 (NSW) - Risk if admitted to Drug Court Program :- Whether facts of offence before the court can be considered in exercise of discretion under s7(2) of Drug Court Act 1998 - Whether dangerous driving may constitute violent conduct. Propensity to commit violent offences - Risk to the community CATCHWORDS: Drug Court Act 1998 (NSW) S7(2) - "eligible person" LEGISLATION CITED: Drug Court Act 1998 (NSW) R v Ranse [1999] NSWDRGC 2; CASES CITED: R v Darrant [1999] NSWDRGC 7; R v Ali [2001] NSWDRGC 1 DATES OF HEARING: 12/04/2001 DATE OF JUDGMENT: 12 April 2001 Regina - D. Muddle, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - H. Grahame, Legal Aid Commission (NSW) JUDGMENT: Background 1. The offender seeks entry to the Drug Court, charged with a number of offences, including taking and driving a motor vehicle without the consent of the owner, driving under the influence and driving in a manner dangerous to the public. After reading the allegations I have questioned that is appropriate for him to enter a Drug Court program, and have heard evidence and addresses in that respect. The Law 2. The decisions to be made involves the court's exercise of its discretion under s 7(2) of the Drug Court Act 1998 . The relevant parts of that section provide "(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, …" 3. That section provides that the Court " may " - (a word which imports a discretion) - "convict and sentence a person if and only if it is satisfied of " a number of factors. However, even if satisfied of those things, there remains a discretion to sentence or not to sentence: R v Ranse [1999] NSWDRGC 2. 4. One of those factors is " (b), having regard to the person's antecedents, it would be appropriate for the person to participate in a Drug Court program under this Act." 5. The first point of law that is argued is that the offences which have been referred to the Drug Court are not matters in the person's antecedents and therefore it would be inappropriate for the Court to consider whether they make it inappropriate for a person to enter into a Drug Court program. While the offences before the court may not form part of the "antecedents" I reject the argument that the circumstances cannot be considered in the exercise of the court's discretion to sentence or not to sentence. 6. The legislators have been wise in s5(2) to limit to a considerable extent those offences which cannot come to the Drug Court and to leave to the Court a discretion as to whether or not it is appropriate for a person to enter into a Drug Court program. The alternative is that the legislation will become very prescriptive in defining a number of offences that are inappropriate. For example, a decision of this Court relating to offences of armed robbery has demonstrated that, were the Courts to take a strict view that offences of armed robbery could not be admitted, many people who have been successful on a program would have been excluded. There are graduates who have committed just that sort of offence. (See R v Darrant [1999] NSWDRGC 7) 7. It is far better to look at the behaviour of the person rather than a prescription of offences. I am satisfied that was the intention of the legislation and that I look to see whether having a regard to the antecedents, under s7(2) and for any other reasons generally, a person should not enter a Drug Court program. 8. Another question of law that arises in this case, although it was not pressed by the Crown, is whether one of these offences before the Court is an offence that involves violent conduct. This is relevant as to whether the person is an eligible person (s 7(2)(a)). I will return to this point later. The Antecedents 9. Having regard to the matters in the offender's antecedents, one matter that raises a particular concern and that is an offence of armed robbery committed a number of years ago. The Court has the benefit of the transcript of the decision of the Court of Criminal Appeal when the sentence of the original court was increased for a number of reasons. The offence is quite thoroughly described there. There are some sensational elements and it would be unwise to become diverted by those. It has been argued that the Court could become discredited in the eyes of the public where somebody who has committed an offence as bad as that is allowed on the Drug Court program. I reject that argument. It is not a rational argument to say that the mere fact that it was a sensationally serious crime ought to prohibit somebody coming to the Drug Court. It is of greater significance to note the behaviour of the offender during the course of that offence. 10. The offender has acknowledged that he was a follower not a planner, although his actions went far beyond mere following when he accepted a firearm that was provided by somebody else and then used it. I note the fact, however, that when it was suggested he go and take another bag that contained the money, he chose not to go because he was scared of doing it. That is behaviour which quite strongly supports the fact that his role in the offence was secondary rather than being in any way involved in the planning of the serious offence. It is quite consistent with the fact that he was told that there was something "going down", that he go and steal a car and be in it and get somebody else to help him do that and it was only later that he found out that it was in fact an armed robbery, let alone an armed robbery of this significance. His behaviour at the time of the offence is, however, of great concern. 11. In Mr Rolfe's antecedents there have been five offences of driving in manner dangerous to the public, and three since September of last year. My recollection is that each of those three involved, at least in part, a pursuit by the police where he has been seeking to escape apprehension. The Present Offences 12. I now come to whether or not one of these offences should be regarded as an offence involving violent conduct. It is quite clear that of itself an offence of driving in a manner dangerous to the public does not include within it an ingredient of violent conduct. There can be offences of driving in a manner dangerous to the public that involve no suggestion of violent conduct apart from what is implicit in a danger to other people but the offence before this court varies quite differently. 13. The offender was seen in the vicinity of a place known to the police for the manufacture of amphetamines. He was signalled to pull over when driving a motor vehicle, he accelerated harshly away from the police vehicle and the police have engaged a pursuit. He turned right into Power Street and crossed to the wrong side of Bent Street to negotiate the corner and drove into the path of an industrial garbage truck. The driver of that truck when forced to take evasive action to avoid a collision, crossed to the wrong side of the roadway and collided with a gutter. The offender continued to accelerate along Power Street turning right into Anne Street and again accelerating harshly away from the police. He braked heavily causing his vehicle to stop in the middle of the road. The police stopped a distance behind and he then put his vehicle into reverse and accelerated harshly backwards causing the rear of his vehicle to come in collision with the front portion of a fully marked police vehicle. He again accelerated harshly, driving up onto the grassed pedestrian footpath, fishtailing from side to side. Negotiating a right-hand turn has caused the rear of his vehicle to collide heavily with the western kerb alignment of another street. Again he stopped and reversed harshly striking the police vehicle. He accelerated away, although the severe damage prevented him reaching high speed, but he again stopped and reversed harshly into the police vehicle. Accelerating away, he collided heavily with the gates of commercial premises causing a large amount of damage there and was arrested after a pursuit. 14. It would not be a difficult argument to suggest that by deliberately driving his motor vehicle so that it struck a police vehicle, there was violent conduct (See R v Sloane [1999] NSWDRGC 3). However, I am considering it in the terms of a general discretion, rather than in the terms eligibility under s5 of the Drug Court Act. 15. The Court has been further assisted by the oral evidence of Mr Rolfe, and a report from Dr Luong a psychiatrist from Department of Corrections Health. He expresses the opinion that Mr Rolfe does not have a propensity to violence, although expresses the view that his driving-related offences are of concern, and suggests that they are something that should not be tolerated if he is on a Drug Court program. Dr Luong is obviously concerned, as I am, about the repetition of this type of behaviour which makes me wonder about his diagnosis that there is no propensity for violence. There does appear to be a propensity to drive in a dangerous manner. 16. Mr Rolfe has given evidence that this propensity arises only when he is affected by drugs, and that, in fact, it was for fear of another prison sentence, and extreme panic, that caused him to behave in this fashion. Unfortunately those views, honestly expressed, reinforce my fears that, should something go wrong on his Drug Court programme, this might be the behaviour that follows. The Arguments 17. In another case, that of R v Ali [2001] NSWDRGC 1, I decided that a person who had, I think it was four offences, of dangerous driving to escape police, was somebody who posed an unacceptable risk to the community. I have had a number of reasons put why this case is different: · that Mr Rolfe has expressed insight, regret and remorse; · that he accepts his responsibility for his behaviour and understands what precipitates that sort of behaviour; · that he is older; and · is likely to go into a residential rehabilitation centre. It is argued that for many reasons there are differences between the two cases. 18. It has also been argued that the consequences of my refusing to allow Mr Rolfe to enter a Drug Court program are that he will enter the prison system, eventually be released and be back where he is now. That may very well be true, but I do not know that I ought to allow that to distract me from the proper exercise of my discretion as to whether it is appropriate that Mr Rolfe does enter a Drug Court program. Unfortunately it may be the case that there is nowhere else that is appropriate, but if the Drug Court itself is not appropriate, then it must be one of those other places that he goes to. 19. I turn to the other matters in Dr Luong's report where the man is described in some detail. He is described as, apart from anything else, suffering from mild mental retardation in early childhood, reportedly a slow learner, although he has now learnt to read and write. The offender has given me a written document which could only be criticised for its spelling errors (and that is immaterial). It shows insight, ability and understanding, and I am satisfied that he would have the intellectual capacity to manage a Drug Court program. 20. He is described as being, within custody, a gentle giant, and I accept that there is not that risk of violence that is sometimes feared from people who seek entry to the Drug Court, that he would be directly violent to treatment providers, other participants, Drug Court team members or the public generally. 21. I note from the statements of facts that it is true that he was affected by drugs at the times that he has committed some of these offences. In others he was not identified until fingerprints were found so there is no evidence of the fact of intoxication. It certainly is the case that it was when he was drug affected that he behaved in this fashion. The purpose of the Drug Court program is, in part, to avoid him being drug-affected. 22. After this analysis of this behaviour, my continuing concern is the frightening risk of what will happen if he relapses, takes a motor vehicle and drives. As has correctly been put to me it becomes a question of risk management. Am I prepared to take that risk on behalf of the community, is it fair to the community that Mr Rolfe be allowed out where that risk is real? Decision 23. In this area of decision-making I think if I err, it should be on behalf of the public rather than the participant. The fact that he would take such extreme action of repeatedly causing his vehicle to come into physical contact with the police vehicle involves not only risk, but so very real violence. What might have happened is only speculation, but there was a very real risk of serious consequences. 24. For those reasons I find the risk to the community is overwhelming. It is too dangerous, and, as I said in the case of Ali, with the enormous regret that goes with a decision such as this, it is not a risk I am prepared to take. 25. In the light of the matters in his antecedents I have discussed, and his behaviour in the commission of the offence before this court, I find it is not appropriate for Mr Rolfe to enter a Drug Court program. ******** 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.