Drug Court of New South Wales CITATION : R v Buttigieg [2002] NSWDRGC 2 Regina PARTIES : -v- Buttigieg, John Anthony FILE NUMBER(S) : 0023 of 2002 CORAM: His Honour Judge Neil Milson at Drug Court :- definition of eligible person - offence involving violent conduct CATCHWORDS: - whether s5(2)(b) applies to offences not before the Court - exercise of District Court or Local Court jurisdiction s24 - existence of outstanding bonds before other courts LEGISLATION CITED: Drug Court Act 1998 (NSW) Chandler v. DPP (2000) 113 A Crim R 196; CASES CITED: Bull v. Attorney General (NSW) (1913) 17 CLR 356; R. v Ahmad [2001]NSWDRGC 7; R. v. Strbik [2002] NSWDRGC 6 June 2002 DATES OF HEARING: 26 June 2002 DATE OF JUDGMENT: 26 June 2002 Regina: D. Muddle, Director of Public Prosecutions N.S.W. LEGAL REPRESENTATIVES: Offender: P. Johnson, Legal Aid Commission of N.S.W. JUDGMENT: 1. The applicant seeks entry to a Drug Court program after having been referred from the Parramatta District on 7 February this year in respect of a number of offences. 2. The transcript of the proceedings of the District Court on 7 February 2002 makes it quite clear that a breach of bond matter, which was also before the District Court, was being adjourned to the Drug Court as a District Court. 3. It was understood by those who were present and involved in the proceedings on that day, including Prosecution and Defence as well as her Honour, that the Drug Court would have had no power to deal with the offence where the bond has been breached because it was an offence involving violent conduct, and it was excluded from the Drug Court jurisdiction because of the provisions of sections 5, 7 and 8 of the Drug Court Act 1998 (hereafter the Act). 4. Because the breached bond exists, the present and somewhat limited argument in respect of this applicant is that he is not an eligible person within the meaning of section 5(2) of the Act. 5. There is no dispute that the offences to which the bond relates are offences involving violent conduct. Section 5 (2)(b) of the Act provides that a person is not an eligible person if the person is charged with "(b) an offence involving violent conduct or sexual assault". 6. The real question is whether the existence of that bond for enforcement, or by extension any other charge before another court, renders the person not an eligible person to enter a Drug Court program. 7. It is also argued by the Crown that because the matter is before this Court it is a matter that must be regarded as having been referred under section 6 of the Act, although that clearly was not the intention of her Honour. 8. It has been the practice of this Court throughout its existence to exercise Local Court and District Court jurisdiction, which it has by virtue of section 24 of the Act, in respect of matters which come before the Court in one way or another. The Act implies that there is more than one way in which cases can come before it. They can be referred under section 6, but section 7(4) makes it clear that when a person is being dealt with for an offence which has been referred under section 6 the Court "may at the same time convict and sentence the offender for any other offence to which he has pleaded guilty, …… whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence." 9. The practice of the Court is to call all outstanding cases in, ie. to contact the court where they lie and ask that they be adjourned to this Court and, when they have been adjourned here, to dealt with them. Should one of those offences be an offence which is excluded because of the violent conduct provisions, the Court on occasions has elected to deal with those matters, exercising District Court or Local Court jurisdiction, in a fashion that has not impeded the entry of the person onto a Drug Court program. And it was with that in mind that this bond here was referred. 10. A similar argument was raised in the matter of R. v Ahmad [2001] NSWDRGC 7 where cases which were not referred were at another court. It was argued there that the existence of those cases rendered the person ineligible to enter a Drug Court program. 11. The point is made in the argument before me by the Crown that at all stages the Court is dealing with a person who is an eligible person or who is not an eligible person rather than a charge that is an eligible charge or not an eligible charge. 12. In the matter of Ahmad I gave reasons which did not canvass in detail all of the submissions which had been made and which did not convince me, and I held that the existence of a charge elsewhere was not sufficient to render a person ineligible to enter a Drug Court program. I will expand the reasons today why I consider that decision to be correct. 13. I acknowledge many of the things which are raised by the Crown on this question of eligibility. It is clearly one of the underlying philosophies of a Drug Court program that eligible offenders are promptly identified and placed within treatment. That has also been identified as to one of the success factors in Drug Court programs. There I refer to publications of the United Nations Drug Court program key elements and success factors which were published following a 1999 gathering sponsored by United Nations looking at Drug Courts. Clearly there are reasons why people should be put on program quickly. 14. In Ahmad's case the charge that was not before this Court was a charge to which the offender was pleading not guilty. I held that the fact of the applicant exercising his right to maintain a plea of not guilty, given the presumption of innocence that goes with criminal cases, was not a factor of itself that should prevent the person coming before the Court. 15. I further ruled that if the Court considered that the existence of those other charges or the prosecution of them before another court was so distracting or disruptive that the person could not properly do a Drug Court program, the Court had the option not to allow the person to enter a program under its general discretion. 16. The Crown argues that other charges elsewhere are serious charges and can take a long time to come before a Court. That is a proposition which the defence contests, and I do not accept. The fact is that an offence which involved violent conduct can in fact be of the most minor type to which a plea of guilty might be going to be entered in the Local Court some time in the future. It could be one of that new found "trifecta" of offences that includes intimidating police officers. This Court has recently found that a threat of violence amounts to violent conduct and therefore is a section 5(2) matter. (R. v. Strbik NSW Drug Court 6 June 2002) 17. Of course, it is quite clear that it was not the intention when the Act was introduced that minor matters such as that exclude people's entry. What was intended was that people who have a violent disposition be prevented from entering into the Drug Court program. And following suggestions in this Court it is anticipated that in the future the legislation might more appropriately reflect that. 18. The question is whether the existence of those charges makes the person ineligible. Section 6 provides "(2) It is the duty of a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court: (a) to ascertain whether the person appears to be an eligible person, and (b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence, and (c) if so, to refer the person to the Drug Court to be dealt with for the offence." 19. It seems to me that it is an available reading of those words to look, not at whether they are eligible charges, but whether the person is an eligible person in relation to the charges which are referred, and it is possible for there to be unreferred charges which do not reflect on eligibility. 20. The reason why I believe there is that ambiguity within the legislation lies within sections 7(4) and 8(5) which each provide that "A person who is convicted and sentenced by the Drug Court under this section with respect to an offence for which the person has been referred to the Drug Court under section 6 may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence." 21. The wording there envisages that even though the person is entering into a Drug Court program, section 5(2) offences may none the less exist, which cannot be dealt with by the Drug Court. This argues against the suggestion that the mere existence of those charges elsewhere is a factor that renders the person ineligible to enter a Drug Court program. 22. I accept that the Act is not clear nor explicit. How should the ambiguity be determined? The answer to that comes from the concept of the Act being legislation having beneficial purposes within it and, whilst Chandler's case (Chandler v DPP (2000) 113 A Crim R 196) has been quoted as the authority, the real authority for that proposition comes from Bull v the Attorney General of New South Wales (NSW)(1913) 17 CLR 356 where the concept was explained in these terms at page 384: "The correct way of reading legislation where there is such an ambiguity is to construe them generously. Not that the true signification of the provision should be strained or exceeded, but that it should be construed to give the fullest relief with which the fair meaning of its language will allow". 23. It continues to be my view, that the words in section 6(2) " It is the duty of a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court …" are intended to imply that the offence is before that court. If there are charges elsewhere they of themselves do not render a person ineligible. It remains a matter for consideration under the Court's discretion as to whether the person will be permitted into a program, or if the matters are referred from another court for further consideration as to whether the person will become eligible or not. 24. The final point that has been raised in this argument today is whether court orders such as bonds or community service orders which are current, or which have been revoked, or are liable to be revoked are "charges" before a court. If s6 is intended to be exclusive, then they would not be a "charge". I have little doubt that it was intended that sections 7(4) or 8(5) would enable the Drug Court to deal with those matters which warranted being re-sentenced when it dealt with outstanding cases. 25. It would be inappropriate for Drug Court jurisdiction to be exercised in respect of such offences which are excluded by section 5(2) and further that it would also be inappropriate for the Court to exercise its jurisdiction under section 7(2) were the bond one that had been imposed following a plea of not guilty in another jurisdiction. 26. In this particular case I hold that the bond has not been referred to the Drug Court under s 6; and that it is before me to exercise District Court jurisdiction, as was requested by her Honour Judge Tupman who referred the matter here. How the court might exercise that jurisdiction will depend largely on the court considering its discretion under section 7(2)(b) of the Drug Court Act as to whether, given that the matter appears on the antecedents of the offender, it is appropriate for the person to participate in a program. Matter adjourned for further consideration in light of these findings and other issues on 23rd July 2002 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.