Drug Court of New South Wales CITATION : R v Ranse [1999] NSWDRGC 2 Crown PARTIES : RANSE, Mark Daniel FILE NUMBER(S) : 0028/99 of 1999 CORAM: at 1 Accused's Antecedents - Discretion - Meaning of Eligible Person - Violent Conduct :- Whether the accused is an "eligible person" under the Drug Court Act 1998 - whether having regard to the accused's antecedents it would be appropriate for the accused to participate in a Drug Court program - whether the Court ought to exercise its discretion to proceed to sentence the accused under s7(2). Drug Court Act 1998 (NSW) CATCHWORDS: s5(2) "violent conduct" s7(2) Crimes Act 1900 (NSW) s94 LEGISLATION CITED: Drug Court Act 1998 (NSW), Crimes Act 1900 (NSW), Criminal Procedure Act 1986 (NSW) CASES CITED: The Queen v De Simoni (1981) 147 CLR 383, considered. DATES OF HEARING: 15/03/99 DATE OF JUDGMENT: 15 March 1999 J. Pheils, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: A. Coultas, Legal Aid Commission (NSW) JUDGMENT: 1. The Crown proposes to proceed against the accused on an indictment. Count six in the proposed indictment alleges that on 23 February 1999 at Merrylands in the State of New South Wales the accused did steal a chattel, ie a handbag, $40 and personal papers the property of Hong Lin from the person of Hong Lin. 2. The brief facts upon which the Crown relies in support of that count are as follows: "At about 5.00 pm on 23 February 1999, Mrs Hong Lin was in the underground car park of her residence in Manchester Street, Merrylands, having just returned from work. She was with her son and daughter. Vehicle TAT-227 approached and the accused got out of the car. He asked Mrs Lin if she knew a person from one of the flats. She said she didn't know. She spoke to her son and then felt the accused pull her bag from her right arm. She fell onto her right side. The bag strap broke. The accused got into the car and drove away. He was unaccompanied. Mrs Lin observed the details of the number plate as he drove away. As a result of her fall, Mrs Lin had a bruise on her right arm and a sore right hip. Her property was found in the vehicle at the time of the accused's arrest." 3. Section 7(2) of the Drug Court Act 1998 provides: "(2) The Drug Court may under this section convict and sentence a person who has pleaded guilty to the offence for which the person has been referred (whether before the referring court or the Drug Court) if, and only if, it is satisfied as to each of the following matters: (a) that the person is an eligible person, (b) that having regard to the person's antecedents it would be appropriate for the person to participate in a program under this Act, (c) . . ." 4. The expression "eligible person" is defined in s5 of the Act. Section 5(2) provides: "(2) A person is not an eligible person if the person is charged with: (a) . . . (b) an offence involving violent conduct or sexual assault, or (c) . . ." 5. The relevant offence with which the accused is charged is an offence against s94 of the Crimes Act 1900. 6. The preliminary issues which the Court must determine are as follows. (1) Whether the accused is an "eligible person" in relation to this offence, ie whether the relevant offence is "an offence involving violent conduct …" (2) If so, whether having regard to the accused's antecedents, it would be appropriate for the accused to participate in a program under the Act. (3) If so, whether the Drug Court ought to exercise its discretion to proceed to sentence the accused under s7(2). "ELIGIBLE PERSON" 7. In relation to the question of "eligible person", neither the expression "an offence involving violent conduct" nor the word "violence" is defined in the Act. 8. The interpretation of s5(2) is not part of the sentencing process per se. However, it may be relevant to have regard to the decision in The Queen v De Simoni (1981) 147 CLR 383. At 383, Chief Justice Gibbs stated: "The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing a sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 9. It is arguable that the circumstances surrounding the offence of stealing from the person of Hong Lin would have warranted conviction for a more serious offence. It is arguable that an assault accompanied the stealing and that the accused could have been charged and convicted of the more serious offence of robbery or assault with intent to rob, each of which is an offence against s94 of the Crimes Act 1900. All three offences carry the same penalty. However, the elements of the offences suggest a difference in terms of seriousness. Further, the Criminal Procedure Act 1986 enables the offence of steal from the person to be dealt with summarily, whereas the offence of robbery can only be dealt with on indictment. This suggests that within s94 itself there is a distinction in terms of seriousness. 10. It would be an unusual situation if there was a factor which could not be considered in the sentencing process itself, but could be considered in relation to the preliminary issue of the whether the Court ought to proceed to sentence under the Drug Court Act 1998 at all. 11. My attention has been drawn to the second reading speech delivered by Mr Whelan MLC, Minister for Police, on 27 October 1998. In part, the Minister said: "The Drug Court program 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, offence involving stealing from the 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." 12. A further factor which is relevant to this issue is the nature of the legislation itself. Unlike most criminal statutes, the Drug Court Act 1998 has as one of its objects the provision of a benefit to offenders. Section 3(3) of the Act provides: "Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activities to support that dependency and should also increase the person's ability to function as a law abiding citizen." Section 5(2)(b) should be narrowly construed. It removes a benefit which would otherwise accrue to an offender, ie the opportunity of participating in a Drug Court program. Ambiguous provisions of the Act should be construed to allow drug dependent offenders the benefit of an opportunity to seek to participate in a Drug Court program. 13. When one has regard to the terms of s3(3) and s5(2)(b) and to the Minister's second reading speech, it is clear that s5(2)(b) renders certain offenders ineligible by reference to the offence charged rather than by reference to surrounding circumstances. 14. As violence (whatever that might mean) is not an element of the offence of steal from the person, the accused is not rendered ineligible by s5(2)(b). SECTION 7(2)(b) 15. The second preliminary question which arises is whether, having regard to the accused's antecedents, it would be appropriate for him to participate in a Drug Court program. 16. To some extent, this question has a common sense answer. There has been proposed to the Court a treatment program which, in accordance with the Court's treatment plan guidelines, is considered highly suitable. 17. The question has been raised because the accused's criminal record discloses matters which clearly involved violence. Apart from anything else, there is an offence of robbery with violence and wounding with which the accused was charged on 13 October 1993. There are other matters on his record which may fall into the same category. 18. However, all those matters occurred prior to 12 October 1993, ie more than five and a half years ago. Second, it would appear from the criminal record and from a judgment of the Court of Criminal Appeal delivered on 8 August 1994 that, in so far as the offence or offences may have involved "violence", that violence was secondary to theft, which in turn was secondary to drug dependence. There is nothing which suggests that the accused is innately violent. Rather, violence has occurred as a consequence of theft, which has occurred as a consequence of drug dependency. There is no evidence of recent violence. The accused has been under observation in prison for the past fourteen days. 19. Having regard to these matters, and particularly to the fact that the Corrections Health Service has been able to devise a highly suitable treatment plan, I am satisfied that, despite his antecedents, it would be appropriate for the accused to participate in a Drug Court program. SECTION 7(2) DISCRETION 20. The third preliminary matter is the question of the exercise of discretion under s7(2). The discretion conferred by that provision is a broad discretion. The Court may take into account factors beyond those specified in parts (a) to (e) of s7(2). However, in this case the matter upon which the Crown places reliance is the matter of violent antecedents. I have already dealt with this matter and expressed the view that, despite the accused's record for at least one and possibly a number of offences of violence, I am satisfied that I should exercise my discretion in favor of sentencing the accused under s7(2) of the Act. 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.