Drug Court of New South Wales CITATION : R v Humphreys [2003] NSWDRGC 1 Regina PARTIES : V Humphreys, Brice FILE NUMBER(S) : 0259 of 2003 CORAM: His Honour Judge Ian Barnett Drug Court Act 1998 (NSW) :- CATCHWORDS: - definition of eligible person - meaning of an eligible person - meaning of "violent conduct" LEGISLATION CITED: Drug Court Act 1998 (NSW) s5(2) CASES CITED: R v Hamilton (1993) 66A Crim R DATES OF HEARING: 4 December 2003 DATE OF JUDGMENT: 4 December 2003 Regina: K. Thompson, Director or Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender: C. Grant, Legal Aid Commission (NSW) JUDGMENT: 1. This applicant has been referred to the Drug Court on a large number of matters from I think Blacktown Local Court. There are some thirty six matters that have been referred and the Crown has argued pursuant to s5 of the Drug Court Act that there is an offence which is an ineligible offence pursuant to the Act, that is that because the applicant is charged with this particular offence, he is not eligible pursuant to s5 (2) (b)of the Drug Court Act. 2. s5 (2) (b) says that a person is not eligible, to enter a Drug Court treatment programme, or eligible to be sentenced under the Drug Court legislation, if that person charged with an offence involving violent conduct or sexual assault. I have been referred to a lot of decisions, which I have had a look at, and it seems to me in this matter it is useful to go back to basics and look at the second reading speech, because an offence involving violent conduct is not separately defined in the legislation. In fact, the legislation is framed in such a way as to give the Court a fairly broad discretion to make a decision in relation to eligible offences. In the Minister's second reading speech on the introduction of the Drug Court bill the minister said, "The Drug Court programme will only deal with offenders who commit certain categories of offences. These offences will be mainly non violent theft offences. All offenders who commit sexual offences, and offences involving violent conduct will not be eligible. The types of offences which will be included are break, enter and steal, fraud, forgery offences, offences involving steal from the person, or unarmed robberies, provided there is no violence. Possession and use of prohibited drugs and dealing in quantities of prohibited drugs below the indictable limit." 3. True it is, as has been pointed out in the arguments in relation to this case, that guidance is very limited, and I think in fact it does give the Court a fairly wide discretion in looking at each case. This applicant has been charged with an offence pursuant to s33B (1) (a) of the Crimes Act. The charge is number 17 on today's list, and that charge reads that "at 4.36pm on 20 August 2003, at Parklea, he did use an offensive weapon with intent to prevent and hinder the lawful apprehension and detention of himself". The essential elements of that offence are firstly that the accused used an offensive weapon, and in this case it was a motor vehicle. The case of R v Hamilton (1993)66A Crim R which I will refer to in greater detail in a minute, is authority for the fact that a car is an offensive weapon used in certain circumstances. The second essential element is that the accused did so with the intention of preventing or hindering the lawful apprehension or detention of that person. I do not have to make any decision about the actual offence here, because it is a plea of guilty. The situation is that the accused, the applicant, has pleaded guilty to that offence, which is an offence that results from a high speed car chase. 4. The facts of the actual matter are set out very succinctly in the facts sheet and relate to an incident that occurred on 20 August 2003. There was a high speed car chase, and the police had prepared at an intersection road spikes, and otherwise blocked the intersection with other police vehicles. The facts read that the applicant has continued along Memorial Avenue, Kellyville, towards Old Windsor Road, he has crossed to the incorrect side of the road, as all traffic was stopped, road spikes were deployed by Constable Crewe on Memorial Avenue near this intersection. The applicant, upon seeing the road spikes, has braked harshly, jumped the median strip back onto the correct side of the road, Constable Crewe has taken evasive action to avoid being run over by the applicant. The applicant has again crossed the median strip coming within metres of Constable Crewe, and crossed onto the incorrect side of the roadway and turned right onto Old Windsor Road. The applicant has continued west along Old Windsor Road on the incorrect side, causing a number of vehicles to take evasive action. The applicant has again crossed the median strip back onto the correct side of the road, and he was pursued further, including the use of Polair. Eventually he was arrested following a collision. 5. It is the case that the facts in R v Hamilton are not too dissimilar from this matter, except in Hamiltion, the police officer shot the driver of the motor vehicle. The Court of Criminal Appeal considered R v Hamilton in Attorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 (2002) NSWCCA s75. That application was by the Attorney General for a guideline judgment concerning sentences imposed for the offence of assault police pursuant to s60 (1) of the Crimes Act. Chief Justice Gleason's, comments in the matter of R v Hamilton were quoted in that latter judgment as "sentencing principal". As I have already said the offender in R v Hamilton was charged pursuant to s33B and the case is cited because it holds that a car used in a way that offender, and also the present applicant, used the car, was an offensive weapon pursuant to the legislation. And the Chief Justice's comments in R v Hamilton are useful in coming to grips with the decision I have to make today, The Chief Justice says (at 581), "In that regard, I should make it clear that offences against s33B which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake difficult, dangerous and usually thankless tasks. The risks that were run by the police officers who were involved in the present case were substantial, the jury obviously accepted the evidence of Constable Brown, they were entitled to do that, and if Constable Brown's version of what happened is in this case is to be accepted, then his life was put at risk by the appellant. The appellant is very lucky that Constable Brown got out of the way, otherwise the charges that he should have been facing would have been a deal more serious." 6. So this type of matter, the Chief Justice says, must be regarded as an extremely serious matter. It is relevant in my view to indicate that this is a provision in the Crimes Act, s33B, which is in Division 6 of the Crimes Act, and that division is headed "Acts causing danger to life or bodily harm", and when one looks at the facts of the present case, and the actual charge, clearly that is the situation. In my view, to mount an argument that this is not an offence involving violent conduct is without merit. In my view, this is a charge that falls fairly and squarely into s5 (2) (b) of the Drug Court Act in that it is an offence involving violent conduct. The section involved, s33B, of the Crimes Act has various levels, and some offences are not as serious as others, and in fact some matters may be dealt with summarily under the section. This present offence is a table one matter, and in my view having regard to the actual circumstances of the offence it is clearly a matter that is excluded from being dealt with pursuant to the Drug Court legislation. 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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