Drug Court of New South Wales CITATION : R v Darrant [1999] NSWDRGC 7 PARTIES : Crown DARRANT, Sarah Jane FILE NUMBER(S) : 0153/1999 of 1999 CORAM: at 1 Discretion - Drug Court Act 1998 (NSW) - Meaning of Eligible Person - Violent Conduct :- Whether the accused is an "eligible person" under the Drug Court Act 1998 - whether the offence of armed robbery necessarily "involves violent conduct"- whether the Court ought to exercise its discretion to proceed to sentence the accused under s7(2). Drug Court Act 1998 (NSW) s5(2) "violent conduct" CATCHWORDS: s7(2) Crimes Act 1900 (NSW) s97 LEGISLATION CITED: Drug Court Act 1998 (NSW), Crimes Act 1900 (NSW) CASES CITED: R v Sloane [1999] NSWDRGC 3, ; R v Armanios [1999] NSWDRGC 5, considered. DATES OF HEARING: 18/06/1999 DATE OF JUDGMENT: 18 June 1999 P. Stanhope, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: A. Coultas, Legal Aid Commission (NSW) JUDGMENT: 1. This matter comes before the Court on a preliminary argument as to whether the Court can or ought to proceed under s 7(2) of the Drug Court Act 1998. 2. The matter has been referred to the Court by the Penrith District Court. 3. The accused is charged with the offence that on 23 November 1998 at North Richmond, being armed with an offensive weapon, ie a 26 centimetre bladed knife, she did rob the victim of thirty dollars in cash, the property of Civic Video North Richmond. 4. It is alleged that at about 10.35pm on Monday, 23 November 1998 the accused parked a vehicle near the Civic Video Store at North Richmond. She entered the store with a 26 centimetre bladed knife up her right sleeve. A stocking covered her face. She said to the shop assistant, the victim, "this is a hold-up" and placed a bag on the counter, directing the shop assistant to place money in the bag. Although it is disputed by the accused, I assume for the purpose of this preliminary argument that (as stated by the victim) the accused had a black coloured knife that looked like a small flick knife in her right hand. The victim placed thirty dollars in the bag and the accused left the store. Later the accused was apprehended in her vehicle. the knife and the thirty dollars were located in the vehicle. 5. The accused has no prior criminal record. That is a matter which I mention only because it may be relevant to whether the accused has a propensity to violence. 6. The Crown argues that the Court cannot proceed under s7(2) because it could not be satisfied of the s7(2)(a) requirement that the accused is an "eligible person" within the meaning of s5 because, pursuant to s5(2)(b), the offence in question is one "involving violent conduct". 7. Alternatively, the Crown contends that pursuant to s7(2) I ought to exercise my discretion against proceeding under that provision because the threat of violence attaching to the commission of this offence was so great and/or the offence itself is so serious in its nature that it is not appropriate for the Court to proceed to sentence under s7(2). 8. The Crown has not advanced an argument in relation to s7(2) discretion of the kind advanced in R v Sloane [1999] NSWDRGC 3 that the accused is a person who, if placed on a Drug Court program, would represent a significant threat in terms of future violence or seriously threatening conduct. 9. In relation to the question of whether the subject offence is an offence "involving violent conduct", in Sloane I determined that the expression "violent conduct" refers to the actual use of physical force and does not encompass a situation where there is a threat of violence. 10. I have been referred to the decision of his Honour, Judge Milson, in R v Armanios [1999] NSWDRGC 5. In that case his Honour was referring to an offence of aggravated armed robbery. The offence was committed in company. His Honour considered that the fact that the offence was committed in company and other circumstances surrounding the commission of the offence raised the degree of the threat of violence to a level where, as I understand the decision, the threat ought to be treated as "violent conduct" even though there was no actual use of physical force. 11. I remain of the view expressed in R v Sloane that the expression "violent conduct" refers to the actual use of physical force. A threat of violence, no matter how great, cannot constitute violent conduct within the meaning of s5(2)(b). 12. In relation to the s7(2) discretion argument, it is clear that when an offence involves a threat of violence that is something which may affect the Court's exercise of its general s7(2) discretion. For example, in the case of R v Sloane the issue was whether the threat of violence attaching to the subject offence when viewed in the context of matters on the accused's criminal record was something which ought to exclude him from participation in a Drug Court program because he was someone who, if placed on a program, might conduct himself in a violent or seriously threatening manner. 13. In the case of this accused there is no suggestion and no argument has been advanced to that effect. Rather, it is argued that where a person is charged with a very serious offence (an offence which is serious either because of the provision under which the charge is laid and the maximum penalty attaching to it, or because of the surrounding circumstances), that fact, of itself, may persuade the Court that it should not sentence the offender under s7(2). 14. In my view, if the legislature wished to exclude particular offences it would have done so under s5(2). Indeed, it did do so in the case of certain offences which are prescribed under s5(2)(a). Alternatively, the legislature could have excluded particular offences by prescribing them under the regulations as permitted by s5(2)(c). Offences against s97 of the Crimes Act 1900 (NSW) are not excluded. 15. It would be inappropriate and dangerous for the Court to categorise some offences as serious and others as not serious, and to exclude offenders on that basis. 16. On the material before me, I am satisfied neither that the accused is rendered ineligible by virtue of s5(2)(b) nor that the Court ought to exercise its discretion and decline to sentence the accused under s7(2). 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.