Drug Court of New South Wales CITATION : R v Spooner [2002] NSWDRGC 3 Regina PARTIES : -v- Spooner, Damien Victor FILE NUMBER(S) : 0202 of 2002 CORAM: His Honour Judge Neil Milson :- definition of eligible person CATCHWORDS: - meaning of an eligible person - meaning of "violent conduct or sexual assault" - indecent assault LEGISLATION CITED: Drug Court Act 1998 (NSW) s5(2) Crimes Act 1900 (NSW) s 62I, s 61L CASES CITED: R. v Harkin (1989) 38 A Crim R 296; Chandler v. DPP (2000) 113 A Crim R 196 DATES OF HEARING: 31 October 2002 DATE OF JUDGMENT: 31 October 2002 Regina: K. Thompson, Director of Public Prosecutions N.S.W LEGAL REPRESENTATIVES: Offender: C. Grant, Legal Aid Commission of N.S.W JUDGMENT: 1. The argument before the Court today is whether the applicant is a person who is an eligible person to enter a Drug Court program or, alternatively, whether the Court ought, in its discretion, find it appropriate for him to enter into a Drug Court program in the light of the nature of the offence with which he is charged. 2. The offence is an offence of aggravated indecent assault that was committed in August of 2000. He was sentenced for the offence in February 2002 after an earlier conviction and ordered to perform community service. He has breached that order and is before me for re-sentencing following the revocation of the community service order. 3. I am informed that further community service or periodic detention as an alternative to full-time imprisonment would not be available for this offender, so it must be said that he is a person who is highly likely to receive a prison sentence. It is an offence to which he had pleaded guilty. It is understood that he is a person who is dependent on prohibited drugs. 4. Therefore the question is whether he satisfies the remaining eligibility criteria prescribed in the Drug Court Act 1998 . 5. Subsection 5(2) provides that: "A person is not an eligible person if the person is charged with: offences relating to dealing with drugs; an offence involving violent conduct or sexual assault; or any other prescribed offence". 6. There are no offences prescribed for the purposes of s5(2). 7. The next question is whether an offence against s 61M(1) of the Crimes Act 1900 is an offence that involves sexual assault. 8. Section 61M provides that: " Any person who assaults another person in circumstances of aggravation and at the time of or immediately before or after the assault commits an act of indecency on or in the presence of the other person is liable to imprisonment." 9. The circumstance of aggravation in this case is that the age of the offender was under 16 years. 10. The defence argue that this offence is not an offence of sexual assault, it is one of indecent assault. It is argued that offences of sexual assault and indecent assault are defined separately in the Crimes Act 1900. I am referred to s 61I, which appears under the heading of "Sexual Assault", and which refers to sexual intercourse without consent. S61L is headed "indecent assault", suggesting that there is a distinction under the law between offences involving sexual assault and offences involving indecent assault. My attention is drawn to the fact that an act of indecency is defined broadly as one in which right-minded people would consider to be contrary to community standards of decency. 11. The contrary argument is raised by the Crown. I am referred to the case of R. V. Harkin (1989) 38 A Crim R 296 where it is said that: "The indecent assault must have some sexual connotation which can be sufficiently derived from the body area of the victim which is touched by the accused or part of the accused used to do the touching." 12. I am further referred to the second reading speech of the Minister of Police on 27 October 1998 when the Drug Court Bill was being debated where it was specifically said that those offenders who commit sexual offences and offences involving violent conduct will not be eligible. 13. It has been argued that, had it been intended that indecent assault be precluded, this could have been stated. As it clearly was not stated, it was not intended to exclude this offence. 14. The other matter I have been referred to is Chandler's case which suggests that it is the elements of the charge that are significant, not the particular conduct. However, I do not think one could ignore the particular conduct when deciding whether this is an offence that involves sexual assault. 15. The allegation to which the offender has pleaded guilty is that he touched the breast of the victim and when she tried to run away he grabbed her and again touched her in the breast area. It is argued that this is clearly conduct with a sexual connotation and therefore the offence is one involving sexual assault. 16. I am satisfied that it is the intention of this legislation that s5(2) refer not only to offences of sexual assaults which would fall within ss 61I,61J, 61JA of the Crimes Act 1900 , (each of which involve sexual intercourse) but would also include an assault that involved conduct with a sexual connotation. 17. It is my finding in this case that the offence with which the offender has been charged is an offence which involves sexual assault within the meaning of those words in s 5(2) of the Drug Court Act, and therefore the offender is not person who is eligible 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.