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. 2 Mr Hilzinger has remained in custody since his arrest on 3 June 2009. When before the Local Court he indicated pleas of guilty, and was committed to the District Court for sentence. Those pleas were maintained when he appeared before Judge Murrell SC at the Campbelltown District Court on 31 March 2010. After hearing submissions, he was then referred to the Drug Court under s 6 of the Drug Court Act 1998 for the principal offence of "aggravated break and enter and commit a serious indictable offence, namely damage property, while in the company of four co-offenders" . There are three additional charges to be taken into account on sentence; two matters of being carried in a stolen motor vehicle on the night in question, and the charge of stealing which relates to the cigarettes and money taken from the cigarette machine. 3 The Crown has questioned his eligibility for a Drug Court program. Such eligibility is defined in Section 5 of the Drug Court Act 1998 . 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." The terms "charged with" and "violent conduct" are not defined. 4 The Crown suggests, on a number of grounds, that Mr Hilzinger is not an eligible offender. An "Elements" or a "Conduct" test? 5 Since the Drug Court Act commenced, there have been a number of decisions on this question of eligibility, and as to whether the Court should look to the elements of the offence charged, or consider the conduct of the offender. 6 The Crown submits that the Drug Court should not confine itself to an "elements" test, and can and should take into account the conduct of Mr Hilzinger, as revealed in the facts sheet. The Crown further argues that Mr Hilzinger falls foul of the elements test in any event. 7 Ms Broomfield argues that the Drug Court has in the past considered both an "elements test" and a "conduct test", and drew the court's attention to the matters of R v E [2005] NSWDRGC 1 and R v Lapa [2004] NSWDRGC 1, two decisions of the Drug Court on this issue. In my view, neither decision provides guidance in this matter, and I adopt what I said In R v Bruc e [2010] NSWDRGC 1 regarding the particular circumstances of R v E . 8 In Bruce , I drew on my decision in R v E , where I sought to summarise the case law on this question of eligibility. I will again draw on that summary: "In the matter of Chandler v The Director of Public Prosecutors [2000] NSWCA 125 Justice Hodgson, Chief Judge in Equity, gave the leading opinion. Justice Hodgson referred to the second reading speech for the Drug Court Act , which was given in the Legislative Assembly on 27 October 1998, and that second reading speech included the following statement; "The Drug Court programme will deal only with offenders who commit certain categories of offences. These offences will be mainly non-violent theft offences. Those offenders who commit sexual offences and offences involving violent conduct will not be eligible. The types of offences that will be included are break, enter and steal, fraud and forgery offences, offences involving stealing from a person or unarmed robberies, provided there is no violence, possession and use of prohibited drugs, or dealing in quantities of prohibited drugs below the indictable limit." At paragraph 37 his Honour said; "…in my opinion, the use of the word 'charged' in Section 5(2) points very strongly to it being the elements of the charge which are significant, not the particular conduct. That view was expressed in an earlier decision of Judge Murrell, Senior Judge of the Drug Court in R v Rance [1999] NSW DRGC 2." Justice Hodgson also referred to dictionary definitions of violence and violence and said; "40. Without quoting them, I think it is fair to say that relevantly the dictionary definition suggests that violence generally refers to the application of rough, strong, physical force." Justice Hodgson also agreed with Judge Murrell in Rance that Section 5(2)(b) should be construed quite strictly, as it removes a benefit which would otherwise accrue to an offender. The next relevant authority is the matter of the Director of Public Prosecutors v Allan Ebsworth and Others [2001] NSWCCA 318. In that matter Justice Meagher gave the leading opinion. The case of Ebsworth concerned a man who was charged with robbery whilst armed with an offensive weapon. Mr Justice Meagher agreed with what Chief Judge Hodgson had said in Chandler in relation to an elements test, and went on to say; "19. I agree with that construction of the section. In my view, this Court should follow what was said in Chandler in this connection. 20. In the present case, if one looks at the charge, it is implicit as I have said from the verb, to rob and the accusation of an offensive weapon, that violence was necessarily involved. Those two elements together constitute violent conduct." 21. Support for this interpretation is found in the decision of the Victorian Supreme Court in R v Butcher [1986] VR 43 when that Court stated, "if threats are made personally to intimidate or seeking to intimidate this is also in our opinion violence…. both putting a person in fear or seeking to put a person in fear of being 'subjected to force' has always been accepted under the common law as violence sufficient to render a contemporaneous larceny a robbery." And continuing from paragraph 24; "24. Accordingly, the charge of armed robbery armed with an offensive weapon, in reference to the elements of the charge, constitutes behaviour involving violent conduct. 25. Even if that test is wrong, and if it were necessary to consider the particular conduct of the offender, the first opponent's behaviour in this case necessarily constitutes violent conduct. 26. For the reasons given above, threatening to use violence in the form of brandishing a baseball bat is sufficient to constitute violent conduct." So essentially the situation is that the decision in Ebsworth agrees with Chandler and again approves the decision of the Drug Court in Rance ." 9 I noted in Bruce that Mason ACJ agreed with Meagher JA in Ebsworth , and said " If one confines oneself to the criminal pleading as distinct from the facts the Crown expects to prove in this case, this was in my view "an offence involving violent conduct…That is because a necessary element of the offence of the robbery charged will be proof of the use of threat of violence." 10 Mr Flood, who appeared for Mr Hilzinger, has also drawn my attention to what Mr Justice Powell said in Chandler . Whilst Powell JA was not able to concur with his brother judges in the case, on this point he said, at paragraph 16: "…it follows that, if – as I believe to be correct – when determining whether an accused is "an eligible person", the Drug Court is required to consider whether violent conduct is one of the elements of the offence with which the accused is charged.." 11 There is, in my view, a clear line of authority from Rance, Chandler and Ebsworth for an elements test, and in Bruce I applied that line of authority, and made a finding that he was an eligible offender. Mr Bruce's case is both interesting and relevant, in that he had been charged with break, enter and steal, committed in the aggravating circumstance of being in company. The facts sheet however disclosed that he had tackled the homeowner to the ground in his escape from the home he had just broken into. In Mr Bruce's case, the prosecution had not laid a charge of breaking and entering, with the circumstance of aggravation being the use of corporal violence, or with a separate charge of assaulting the homeowner. So what was before the Drug Court was a charge which on its face had no elements of violent conduct within it, and a facts sheet which disclosed an alternate charge, or an additional charge, and a fact which was relevant on sentence. I am told that the Crown is seeking to test that decision. 12 In the absence of any new authority on the issue, I remain of the view that the elements test is the correct test, and, on the face of it, there is no element of violent conduct in the charge laid against Mr Hilzinger. Multiple Circumstances of Aggravation 13 The strongest argument from the Crown is that the Crown is only obliged to aver one circumstance of aggravation, irrespective of how many such circumstances may be present. Section 105A of the Crimes Act 1900 defines "circumstances of aggravation" as "circumstances involving any one or more" of six circumstances, and the Crown argues that the failure to select a circumstance of aggravation which alleges violent conduct does not mean the element involving violence is not also an element, as the definition section specifically refers to circumstances of aggravation being one or more of those matters. 14 The Crown argues that all six aggravating circumstances set out in section 105A (1) of the Crimes Act 1900 apply to Mr Hilzinger's behaviour. The facts sheet reveals that: (1)(a) Mr Hilzinger was armed with a stick. (1)(b) He was in company (as averred). (1)(c) He did use corporal violence by pulling the victim to his feet after having yelled at him to get down on the floor and put his hands on his head. Further, that this aggravating circumstance is established on the basis of common purpose. (1)(d) He did inflict actual bodily harm to the victim by virtue of the psychological harm to Mr Graham (as set out in the Victim Impact Statement). (1)(e) He deprived Mr Graham of his liberty by retaining him in the staff room of the hotel. (1)(f) He knew there was a person present in the hotel when the offence was committed – indeed they waited for the cleaner to unlock the hotel to gain entry. 15 On this issue Mr Flood has argued that the word "charged" should be given its normal, usual meaning, and that the identification of which circumstance of aggravation the Crown relies upon is more than just the identification of a particular. The legislation is beneficial legislation, and as Hodgson CJ in Equity said in Chandler (quoted above). 16 Mr Flood has also drawn attention to the fact that a charge of kidnapping was in fact laid, but later withdrawn and dismissed, as the Crown conceded " that it cannot prove that the offender was one of the males who accompanied the victim in his car, or that he was a party to an agreement that the victim would be driven away from the scene." 17 The Crown argues that any one of the aggravating circumstances could have been averred in the charge, and that all of those factors are relevant and are to be taken into account on sentence. The argument is that the choice of aggravating circumstance should not be the determining factor as to whether Mr Hilzinger is eligible for a Drug Court program, and that it was never Parliament's intention to provide such a program for violent offenders. 18 I cannot agree with that submission. The fact that there are other, alternate charges available which would have specified those alternate aggravating circumstances does not elevate those alternate aggravating circumstances to being elements of the subject offence. Those facts are, of course, relevant on sentence. But they are not an element of the offence charged, and would not have to be proved at trial. They will be relevant in any sentencing proceedings, including sentencing proceedings before the Drug Court. 19 The test provided for the Drug Court is to ascertain whether Mr Hilzinger has been charged with an offence involving violent conduct. The test is not whether he could have been charged with an offence involving violent conduct. Both Ms Broomfield and Mr Flood have made submissions as to what Parliament could have done. However given this is beneficial legislation, and should be interpreted accordingly, it is perhaps obvious that if Parliament had wanted to exclude persons in relation to whom the facts of the case revealed violence to persons or property, it would have been very simple to draft section 5 accordingly. 20 I remain of the view, as expressed in Bruce , that the words "charged with…an offence involving violent conduct" should be given their ordinary meaning, and that the clear line of authority is for an elements test. The prosecution has chosen to lay a particular charge, no doubt after considering the evidence available, and a plea of guilty has been entered to that charge. That is the only relevant offence with which he has been charged. Is causing substantial damage to property violent conduct? 21 Whilst the Crown, in opposition to Mr Hilzinger's eligibility, did not raise the issue of damage to property, Mr Flood addressed the issue in his written submissions. I think it should be quickly addressed. There have been a number of decisions on the meaning of s 5, however none address the question of whether material damage (in this case very substantial damage) constitutes being charged with an offence involving violent conduct. The damage to the hotel in this matter is very considerable, with a damages bill of $63,474 and the loss of business whilst the hotel was closed for repairs is estimated as $15,854. 22 The fact that very substantial damage was done to the property does not render Mr Hilzinger ineligible. Breaking into premises was a crime anticipated by the legislators, and is specifically mentioned in the 2 nd Reading Speech frequently referred to in the cases on section 5. So crimes involving damage to property were expected to be eligible offences. Unfortunately it is the case that very considerable damage is sometimes occasioned to premises during break-ins. Very expensive shop front windows or secure roller doors may be broken, or there may be extensive vandalism. It can also be, as Mr Flood has pointed out, that great damage may be occasioned with no element of violence at all –with aerosol paint for example. The fact that very significant material damage was done, as apart from (just) breaking a door or window to gain entry, does not elevate the offence to one which is an ineligible offence. 23 Accordingly, in the light of all of the above, I am of the view that Mr Hilzinger is 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. 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