Drug Court of New South Wales CITATION : R v E [2005] NSWDRGC 1 PARTIES : Crown E, Sam FILE NUMBER(S) : 70 of 2005 CORAM: His Honour Senior Judge Roger Dive at 1 CATCHWORDS: Meaning of Eligible Person :- – whether offence of wielding a knife in a public place is an offence involving "violent conduct" – the "elements of the offence" test does not determine the issue – the particular conduct of the offender examined. Drug Court Act 1998 (NSW) LEGISLATION CITED: S 5(2) "offence involving violent conduct" S 11E(1)(a) Summary Offences Act 1988 Chandler v The Director of Public Prosecutors [2000] NSWCA 125; R v Rance [1999] NSW Dg Ct 2; CASES CITED: Director of Public Prosecutors v Allan Ebsworth and Others [2001] NSWCCA 318; R v Butcher [1986] VR 43; R v Lapa [2004] NSWDRGC 1 DATES OF HEARING: 6 April 2005 DATE OF JUDGMENT: 6 April 2005 R. Ranken, Director of Public Prosecutions LEGAL REPRESENTATIVES: I. Rodgers, Legal Aid Commission JUDGMENT: 1 Mr Sam E has been referred to the Drug Court on fourteen charges, most of which relate to driving offences. The issue before the Court is whether Mr E is an eligible person under Section 5 of the Drug Court Act 1998, given there is also a charge of wielding a knife in a public place, an offence under section 11E(1)(a) of the Summary Offences Act 1988 . 2 The offence in question occurred on 10 July 2004. Mr E pleaded guilty to the charge when before Liverpool Local Court, and on 3 November 2004 was dealt with by the imposition of a ten month Section 12 suspended sentence. He has breached that bond by virtue of further offences, and so has now been called up for sentence on the breach of bond matter. That call-up has been referred to the Drug Court, together with the new offences. So Mr E has not only been charged with an offence under Section 11E, he has pleaded guilty, been convicted, and then has had his sentence for the offence imposed and then suspended. 3 Eligibility for a Drug Court program is defined in Section 5 of the Drug Court Act . 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 Court of Criminal Appeal has made previous decisions that assist this Court in determining what "violent conduct" means. 4 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." 5 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 Dg Ct 2." 6 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." 7 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. 8 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." 9 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." 10 So essentially the situation is that the decision in Ebsworth agrees with Chandler and again approves the decision of the Drug Court in Rance. 11 In the light of those authorities, for this court to decide whether Mr E is an eligible person under Section 5, it is therefore appropriate to firstly look at the elements of the offence of wielding a knife in a public place. Does that offence have, as an element, violent conduct? 12 Referring to the Butterworths "Criminal Practice and Procedure" , the authors thereof suggest (at paragraph 27-71350) that the elements of the offence are: 1) the accused without reasonable excuse; 2) used a knife in the presence of any person in a public place or school; 3) in a manner which would be likely to cause a person a reasonable firmness present at the scene to fear for his or her personal safety. No person of reasonable firmness need actually be, or be likely to be, present at the scene. There is also the reference to the statutory defence in Section 12. 13 Unlike the gravity of the robbery offence considered in Ebsworth, the offence of wielding a knife in a public place can be established without anyone who was there actually being placed in fear, or anyone of reasonable firmness actually being present, or indeed anyone of reasonable firmness likely to be present at the scene. Further, the accused could have a reasonable excuse for using or carrying the knife in the circumstances proscribed, and thereby would not have committed an offence. There is also a statutory defence provided in Section 12, whereby the accused is not guilty of the offence if he or she establishes that the act complained of was done with lawful authority. 14 So an offence under Section 11E can involve no actual fear being engendered, or no person of the requisite fortitude being present. Or there could be such a fear or potential fear, however the accused is able to establish a reasonable excuse on the balance of probabilities for his or her behaviour, and is therefore not guilty of any offence. 15 Further, there could be such fear or potential fear, however the defendant may be not guilty of the offence as he or she is able to establish a lawful authority under Section 12. 16 Accordingly, in my view the elements of the charge test formulated in Chandler, and as approved in Ebsworth, does not necessary provide the complete answer to the issue raised in Section 5 of the Drug Court Act, as a charge under Section 11E of the Summary Offences Act can be established without what would generally be regarded as an element of violent conduct. I note that whilst such a circumstance cannot arise before the Drug Court, a charge under Section 11E could be dismissed when, what would be regarded as violent conduct has occurred, but the accused has a reasonable excuse or lawful authority for his or her behaviour. 17 Therefore, in my view there is a need in this case to consider the particular conduct of the offender, as was briefly raised at paragraph 25 by Justice Meagher in Ebsworth. I note that a similar issue arose before the Drug Court in the matter of R v Lapa [2004] NSWDRGC 1, a decision of Judge Orchiston, wherein the Court was considering a charge of intimidation of a police officer. 18 Turning back to what Justice Meagher said in Ebsworth, His Honour referred to the elements of the charge and then said; "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." 19 I have formed a view that there is a need in this case to consider the particular conduct of the offender, and the facts sheet discloses; "at 7.45pm on Saturday 10 June 2004 the accused, Sam E, was walking to a bus stop in Hoxton Park while being armed with a number of knives and scissors when at the intersection of Cowpasture Road and Hoxton Park Road the accused has hit motor vehicle ACE-90Z with a knife causing a large scratch and dent to the rear near-side panel of the motor vehicle. The accused has then proceeded to hit another motor car with one of the knives. This has caused damage to the passenger side front window. The damage was a large scratch to the window. The accused has then hit another motor vehicle with a pole. This caused damage to the front passenger side window in the form of a large scratch and damage to the door jam. While this has occurred a number of witnesses have contacted police who arrived a short time later. Police patrol the area, spoke to one of the victims who pointed out the accused to police. Police have then approached the accused. Police have seen that the accused was in possession of one large butcher knife which was carried in his right hand, and a twenty centimetre long knife in his left hand. Police have announced their office and drawn their service firearm and called on the accused to drop the knives he had in his possession. The accused refused and retained possession of the knives. Police again called on the accused to drop the knives and he again refused. Police have then used a one second burst of OC spray to the face of the accused. Police have then again called on the accused to drop the knives. The accused then threw the knives on the ground and then he was arrested." 20 Mr Rodgers, appearing for Mr E, has submitted that there is no actual violence to any person, and that whilst there was malicious damage to motor vehicles, no charges of assault on police, or of resisting police, or of using a weapon to avoid apprehension were laid, and Mr Rodgers invited the Court to draw the conclusion that there is no evidence of any fear, and indeed there was no actual fear experienced by those officers. 21 The Crown in reply suggests that, even applying the test I have set out above, the Court cannot look at the facts in isolation from the offence charged, and that in a dictionary definition of violence, the physical force need not necessarily be upon a person. 22 Having considered all of the relevant conduct of the defendant, in my view the conduct described in those facts do constitute an offence involving violent conduct being perpetrated by the offender. He has firstly used a knife to damage motor vehicles. He has caused members of the public to react to his behaviour by summonsing police. The police on attending have confronted the accused and called upon him to drop the large butcher's knife which was in his right hand, and the large knife in his left hand. Police have announced their office, drawn a firearm, and even then the accused has refused to drop the knives. A second demand was also refused, requiring the use of capsicum spray, before finally the knives were thrown to the ground. 23 It is my opinion that the accused has been charged with an offence involving violent conduct, and that he is therefore not an eligible person for a Drug Court program. The matters must be returned to the Local 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. 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