Drug Court of New South Wales CITATION : R v Duggan [2001] NSWDRGC 5 Regina PARTIES : -v- DUGGAN, Adam John FILE NUMBER(S) : 0084 of 2001 CORAM: His Honour Judge Neil Milson CATCHWORDS: Drug Court Act 1998 (NSW) - Meaning of Eligible Person :- usual place of residence LEGISLATION CITED: Drug Court Act 1998 (NSW) CASES CITED: R v Chandler [1999] NSWDRGC 7; Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196 DATES OF HEARING: 06/06/2001 DATE OF JUDGMENT: 6 June 2001 Regina - R. Shafiq, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - S. Healy, Legal Aid Commission (NSW) JUDGMENT: Background 1. The offender before the Court is seeking entry to a Drug Court program. Before he can be sentenced and released to a program by the exercise of s7 of the Drug Court Act 1998, the Drug Court must firstly be satisfied that he is an eligible person. To be an eligible person he has to meet the criteria set out in s5 and so far as that is concerned, the relevant part is s5(1)(e), that he "satisfies such other criteria as are prescribed by the regulations." Clause 5 of the Drug Court Regulation 1999 sets out criteria that "a person must satisfy in order to be an eligible person within the meaning of the Act…" The first of those is "(a) the person's usual place of residence must be within one of the following local government areas, namely…." and a number are listed. 2. It is not disputed that at the time of Mr Duggan's arrest, and immediately before entering into police custody on or about 2 April 2001, his usual place of residence was at King's Road, Five Dock. That address is not within one of the local government areas prescribed in cl5(a) of the regulation. Since then he has been held at either the Metropolitan Reception and Remand Centre at Silverwater or Parramatta Correctional Centre. Each of those places is situated within the boundaries of one of the prescribed local government areas. 3. It is argued that as he has been in one of those two places and certainly at Parramatta since about 9 April 2001, when he appears before me today his usual place of residence is within the boundaries set by the regulations. The Drug Court Pilot Program 4. The reason there are boundaries for the Drug Court is because it is a pilot program, an experimental program being conducted. As a matter of general fairness that would be the only basis for having beneficial legislation such as a Drug Court Act available to some people and others excluded because of where they reside. As a matter of practice a number of people are also excluded because of the limited capacity that the Drug Court has to deal with participants. "Usual place of residence" 5. A number of authorities that have been cited that define the term "usual place of residence" as "usual place of abode". It is not a term that is defined for the Drug Court Act purposes. Each of the decisions make sense in the context of the legislation in which they have been considered, but none appear to advance the arguments in this case. There are a number of longer definitions defining the words, or expanding the definition of those ordinary English words of "usual place of residence". 6. Of interest is the point that an element of choice is usually involved in the concept of residence, but it is not necessarily an element contemplated in the Matrimonial Causes Act 1899 (NSW). In this case the applicant before the Court has no choice as to where he resides at the present time because he is a prisoner, or if not a prisoner, a person in custody awaiting sentence. Reasons and Decision 7. If the Court were to accept that everybody who was confined in police or Corrective Services custody at a police station or prison within those boundaries was then at their usual place of residence, then everyone of those persons would meet that test of eligibility. Could it be that it was the intention of the legislation that anybody who went into Corrective Services custody awaiting sentence would automatically be eligible for a Drug Court program? This is a program that deals with people who are "highly likely" to receive a prison sentence. It seems difficult to consider that the legislators would not have considered that the people coming to a Court would in fact be in custody. If this were the intention one could imagine that they could have said that the pool of eligible people for referral to the Drug Court were all prisoners who were in custody awaiting sentence. Certainly all of those at the prisons in Western Sydney would become eligible were one to rule this way. 8. It has been argued to me that because this is legislation having beneficial effect, that the Court ought to construe the legislation beneficially towards those to whom it is intended to benefit. That was a philosophy adopted by this Court in R v Chandler [1999] NSWDRGC 6, and adhered to in a review of that decision (Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196) and in other legislation such as the workers compensation legislation. 9. On the other hand the Drug Court is a pilot program of limited application. It has been made a requirement of the legislation that a person must be found eligible to enter a Drug Court program. Given the implications of finding that all prisoners at Silverwater or Parramatta Correctional Centres, (and also the centres at Emu Plains and Parklea where there may be remand prisoners) would be eligible I hold that this is quite clearly outside the contemplation of those who framed this legislation. 10. For the purposes of this legislation I am satisfied that the time at which I ought to be considering where a person's place of residence was, is at the time immediately before they came into custody, that is immediately before they reached that status where they had no choice as to where they were living. 11. For those reasons I must find that this person is not an eligible person to enter a Drug Court program. ******** 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.