Drug Court New South Wales Medium Neutral Citation: R v Partridge [2012] NSWDRGC 2 Hearing dates: 18 July 2012 Decision date: 25 July 2012 Before: His Honour Senior Judge Dive Decision: Mackie Partridge is an eligible offender. Catchwords: Meaning of "usual place of residence" for the purposes of determining eligibility for Drug Court program. Usual residence at time of arrest was " one crucial and relevant point in time" to determine "usual place of residence". Legislation Cited: S 5(1)(e) Drug Court Act 1998 (NSW) S 7A Drug Court Act 1998 (NSW) Cl 4 Drug Court Regulation 2010 Cases Cited: R v Duggan [2001] NSW DRGC 5 R v Tewake [2005] NSWDRGC 2 Chandler v DPP [2000] 113 A Crim R 196 Bull v Attorney-General of New South Wales [1913] 17 CLR 356 R v Uong [20014] NSWDRGC 12 R v E [2005] NSWDRGC 1 R v Tewake [2005] NSWDRGC 2 R v Bruce [2010] NSWDRGC 1 Category: Principal judgment Parties: Regina (Crown) PARTRIDGE, Mackie (Offender) Representation: E. Gadsby, Director of Public Prosecutions (Crown) P. Bartels, Legal Aid Commission (Offender) File Number(s): 101 of 2012 Judgment 1Mr Mackie Partridge is before the Drug Court today, seeking the opportunity of a Drug Court program. 2The Crown has raised with the Court the question of his eligibility for the program. A hearing was conducted on 18 July 2012, evidence was called, and a decision reserved until today. 3The eligibility issue in relation to Mr Partridge is as to whether his "usual place of residence" is within the catchment area of the Drug Court. 4The issue as to what defines "usual place of residence" was before the Drug Court in the matter of R v Duggan [2001] NSWDRGC 5. His Honour the late Judge Neil Milson, who heard that matter, set out the legislation and the regulation which governs this issue: "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." 5The relevant section is now s 7A, and the regulation is now clause 4 of the 2010 edition, however the relevant contents thereof are the same. 6In Duggan, Judge Milson noted that the Drug Court Act is beneficial legislation, and should be interpreted accordingly. There has now been a long history of authorities in this jurisdiction to that effect, and I gathered those authorities together in the matter of R v Tewake [2005] NSWDRGC 2: "There can be no doubt that the Drug Court Act is beneficial legislation, and it has long been established that it should be interpreted accordingly. The concept of legislation having beneficial purposes was referred to in Chandler v DPP [2000] 113 A Crim R 196, which in turn referred to Bull v Attorney-General of New South Wales [1913] 17 CLR 356, where the concept was explained (at page 384) in the following way; "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." 7The matter of Duggan involved a prisoner who had been recently residing, albeit involuntarily, in the custody of Corrective Services at Silverwater and Parramatta. Both of those locations are within the defined boundaries of clause 5 of the regulations. In Duggan, Judge Milson held: "I am satisfied that the time at which I ought to be considered 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." 8In the matter of R v Uong [2001] NSWGRGC 12, Her Honour Judge Helen Murrell dealt with a man who had moved from his family home at Bonnyrigg (within area) to live primarily at Campsie (out of area) to be closer to his place of work. He was arrested in Cabramatta apparently. In that case Judge Murrell accepted the Crown's contention that "usual place of residence" within the meaning of the regulations: "is the place where a person chooses to spend most of their time during the daytime, in terms of sleeping requirements, to eat and to keep most of their belongings, i.e. the person's "home base". 9Her Honour also held that: "It is quite clear on the uncontested facts that, from August to October 2001, the offender chose to make his home base at Campsie. It is most unfortunate that, because of this unlucky turn of events, the offender is precluded from placement on a Drug Court program." 10Mr Partridge's circumstances are somewhat unusual. He described himself as "a drifter", and agreed that he had "no fixed place of abode" as lawyers are fond of saying. He has lived at a variety of addresses since he was 14 years old, and first ran away from home when he was only 10 years old. He is only 18 years of age now. 11He gave evidence of living with his grandparents in Adelaide and with his mother in Melbourne in his early teens. He was reported as a missing person in Melbourne, and was placed in both residential care and foster care. He later moved in with a friend of the family, who he regarded as an aunt, in Adelaide, and had some successful months there, getting away from alcohol and drugs for a number of months. 12That placement however collapsed, and he returned to an address with friends in Melbourne, before moving to his grandparents' home at Glenthorne, near Taree. His mother moved there too. These are the same grandparents who had previously lived in Adelaide. His time at Glenthorne was initially successful, and he began work as an apprentice pest controller. 13Sadly, Mr Partridge returned to alcohol and drugs, and he lost his driver's licence. After an incident when he took drug paraphernalia into the kitchen of his grandparents' home, he was required to leave. He headed for Central Station in Sydney, with a plan to return to Adelaide. Unfortunately however, at Central Station, he was befriended by a man named Kerry McKenzie. He firstly stayed with Mr McKenzie at a half-way house near Central Station, and then at Mr McKenzie's address in Merrylands. 14Together they committed a number of serious crimes, and Mr Partridge was arrested at the Merrylands address on 29 November 2011, and remained bail refused for a number of months. The Merrylands address is within the catchment area of the Drug Court. 15Mr Partridge was granted conditional bail on 11 January 2012, and he was bailed to reside at his grandparents' home at Glenthorne. Mr Partridge tells the court that his lawyer nominated that address without any inquiries being made with the grandparents, and, whilst he was released to that conditional bail, he was not allowed into their home. So instead he went to live with friends at Tuncurry. 16Mr Partridge remained at the Tuncurry address until he committed some traffic and other offences on 29 January 2012, and was dealt with by way of fines at the Taree Local Court on 31 January 2012. The fact that he was not residing at the address to which he was bailed was discovered, and he has remained in custody since then. The submissions 17Ms Gadsby, for the Crown, has submitted that the relevant point in time to determine his "usual place of residence" is when Mr Partridge last came into custody, i.e., the Tuncurry address. This has been, in the Crown's submission, the long-term test applied by this Court in determining eligibility. Further, the Crown submits that if Mr Partridge is a homeless person, he is not a homeless person within the geographical drawing area of the Drug Court. The Crown acknowledges that it is an arbitrary test, and that is very unfortunate for Mr Partridge. 18Mr Bartels, for Mr Partridge, notes that the clientele of the Drug Court are rich in variety, and often have chaotic backgrounds. Mr Bartels has argued that Mr Partridge is an itinerant young person, who has been a street kid since he was 14 years of age. He was staying at an address within the Drug Court geographical limits, and committed offences nearby, before being arrested at that address. He was then, some months later, bailed to reside outside the area. Whilst he did not remain at that address (because he was not allowed to) he did remain nearby at Tuncurry. Mr Bartels argues that Mr Partridge was lucky to be at an eligible address when he committed the crimes, but that is his good fortune, and he should have the benefit of it. 19Quoting again from what I said in Tewake: "I think it would also be fair to say that Parliament, in creating such new and innovative jurisdiction, may not have anticipated the complexity and variety of situations offenders, especially drug offenders, can get themselves into. The Drug Court has to deal with offenders who have multiple offences in different jurisdictions, and who may have parole, which is either ongoing, or has been revoked. Participants may be on good behaviour bonds, or have breached such orders, or may be doing Community Service Orders, Periodic Detention or Home Detention. Or perhaps they have breached those orders as well. Any one offender may have multiple sentencing complications. There are many twists and turns before eligibility, appropriateness, and even availability can be determined, so it would be understandable, indeed inevitable, that not all situations were fully anticipated in the drafting of the legislation." 20Those observations are relevant again in Mr Partridge's case. It is quite understandable that the regulation should include the sensible phrase "the person's usual place of residence" so as restrict the geographical reach of the program. However the particular clientele in this jurisdiction challenge the ordinary notions of many community norms. Assumptions are easily made as to people having a home, and of sleeping at a home address. However the clientele of this Court have been found to be sleeping in parks, under bridges or in cars (so do not have any place of "residence" by any ordinary definition). They may not even sleep anywhere at all for days on end when consuming large amounts amphetamines, and may be in many different locations in the days leading up to custody. So both the notion of residence and even sleeping somewhere can be challenged. 21The decision in Duggan is a very sensible one, and has provided this court with a test for residential eligibility for many years. Mr Duggan was a prisoner, and came from outside the geographical limits of the jurisdiction. If every prisoner from across the state who compulsorily lived in a gaol within area was eligible, the resources of the court would be stretched beyond limits, as the program would, as they progressed on program, need to try and provide resources in the community to treat such offenders within their far-flung community addresses. 22The argument before the Court is a miserable one, in the true sense of the word. A person may not be eligible because they live, literally, on the wrong side of a street which is the boundary between Local Government Areas. I do not for a moment suggest the Crown takes up the issue with any passion, but is providing the court with the professional assistance it needs with the hundreds of referrals made to this jurisdiction each year. 23In my view however, Mr Partridge is a man who did have a "usual place of residence" within the geographical limits of the Drug Court when he was arrested for the offences before the court. He was not a prisoner from elsewhere. He was then ordered, by virtue of his bail, to live at another address at Glenthorne, which is out of area. He could not live there, so found yet another address in Tuncurry. After that, he has again become a prisoner, and has remained in custody for many months. It is interesting to note that one of his bail conditions was "not to associate with Kerry McKenzie", who was the man he had resided with at the Merrylands address. So there were many reasons why he could not, and did not, ever get to return to the address in Merrylands. 24I am satisfied that, for the purposes of clause 5, his "usual place of residence" at one crucial and relevant point in time - i.e., when arrested for the crimes referred to this court, was an address within area. Indeed, was it not for the grant of conditional bail on 11 January 2012 there would have been no doubt he was eligible in terms of residential address. 25To determine otherwise would produce a remarkable result, whereby for the period 29 November 2011 to the 11 January 2012 he was an eligible offender, and then, by virtue of the good fortune of bail and the ensuing court mandate, he managed to lose that status. The fact that he was an eligible offender did not, in my opinion, disappear with the intervening event of a grant of bail. 26Accordingly, I am satisfied that he is an eligible offender. ********** 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. Decision last updated: 10 August 2012