R v Christopher HILZINGER [2010] NSWDRGC 2

Drug Court of New South Wales

CITATION : R v Christopher HILZINGER [2010] NSWDRGC 2 PARTIES : Regina (Crown) Christopher HILZINGER (Offender) FILE NUMBER(S) : 58 of 2010 CORAM: His Honour Senior Judge Roger Dive Meaning of Eligible Person :- whether the test regarding eligibility requires examination of the elements of the offence charged or the conduct disclosed in the agreed facts. Whether an offender charged with the offence of break CATCHWORDS: enter and damage property in company has been charged with an offence involving violent conduct when the facts reveal the Crown could have chosen alternate circumstances of aggravation (which involve violent conduct). Whether damage to property has as an element "violent conduct" LEGISLATION CITED: Drug Court Act 1998 (NSW) Crimes Act 1900 R v Rance [1999] NSW DRGC 2; Chandler v The Director of Public Prosecutors [2000] NSWCA 125; Director of Public Prosecutors v Allan Ebsworth and Others [2001] NSWCCA 318; CASES CITED: R v Butcher [1986] VR 43; R v Lapa [2004] NSWDRGC 1; R v E [2005] NSWDRGC 1; R v Tewake [2005] NSWDRGC 2; R v Bruce [2010] NSWDRGC 1 DATES OF HEARING: 4 May 2010 DATE OF JUDGMENT: 18 May 2010

A Broomfield, Director of Public Prosecutions (Crown) LEGAL REPRESENTATIVES: S Flood, Legal Aid Commission (Offender)

JUDGMENT:

1 Mr Hilzinger is a 19 year old man who has committed a number of offences, including a serious crime. Unusually for a man referred to the Drug Court, he has never been in trouble before. On the 3 June 2009, Mr Hilzinger has gone with four other offenders to Lockies Hotel at Leppington in the middle of the night. Wearing balaclavas, the five have gained access to the hotel, confronted and detained Mr Graham, the cleaner, and then caused very significant damage to the hotel by driving both a 4WD and a forklift into the hotel in an attempt to steal a safe and an ATM. A silent alarm was activated, police attended, the offenders fled, and little was actually stolen. Mr Hilzinger was in fact the only person apprehended, as he was found nearby a short time later. Upon apprehension, he had in his possession a balaclava, gloves, and $1390. The money had come from breaking into the cigarette machine. Mr Hilzinger faces no other charges which involve violence towards the cleaner, Mr Graham, even though Mr Graham was kidnapped for a short time (having been taken for a drive at the beginning of this event), manhandled at one point, and then later detained in the staff room.