Chandler v The Director of Public Prosecutions

[2000] NSWCA 125

Reported Decision: (2000) 49 NSWLR 1
(2000) 31 MVR 319
(2000) 113 A Crim R 196

New South Wales

Court of Appeal

CITATION:	Chandler v. The Director of Public Prosecutions & Anor. [2000] NSWCA 125
FILE NUMBER(S):	CA 40801/99
HEARING DATE(S):	17/02/00
JUDGMENT DATE:	16 May 2000
PARTIES :	Paul Chandler - Claimant The Director of Public Prosecutions - First Opponent The Judges of the Drug Court of New South Wales - Second Opponent
JUDGMENT OF:	Powell JA at 1; Stein JA at 18; Hodgson CJinEq at 21

LOWER COURT JURISDICTION :	Drug Court of NSW
LOWER COURT FILE NUMBER(S) :	99/0124
LOWER COURT JUDICIAL OFFICER :	Judge Murrell

COUNSEL:	R. Burgess for Claimant G. Smith for Opponents
SOLICITORS:	R. Kozanwcki, Legal Aid Commission for Claimant S. Kavanagh, Solicitor for Public Prosecutions for Opponents
CATCHWORDS:	CRIMINAL LAW - Offences by persons dependent on drugs - Eligibility for program under Drug Courts Act - Requirement that offence not be one "involving violent conduct" - Whether satisfied in case of dangerous driving occasioning death - WORDS AND PHRASES - 'Violent conduct'
LEGISLATION CITED:	Crimes Act s.52A Drug Court Act ss.3, 5, 6, 7.
CASES CITED:	Craig v. State of South Australia (1995) 184 CLR 163 Waterhouse v. Gilmore (1988) 12 NSWLR 270 Saffton v. DPP (1989) 16 NSWLR 397 at 418. R. v. Ranse (1999) NSWDRGC 2 R v. Cochrane (1994) CR AppR(S) 708 at 711 R. v. Bibby (1995) 16 CR AppR(S) 127 at 129 R. v. Ragg (1995) 4 AllER 155 R. v. Harris (1967) 85 WN 1 at 7 R. v. Coventry (1938) 59 CLR 633 at 639 Seay v. Eastwood 91976) 1 WLR 1117 NSW Associated Blue Metal Quarries Ltd. v. FCT (1956) 94 CLR 509 at 514 AG v. Binoff (1954) 70 (WN)NSW 309 R. v. Buttsworth (1983) 1 NSWLR 658 R. v. Slattery (1996) 90 ACrim.R 519 R. v. Jurisic (1998) 45 NSWLR 209 at 227 R. v. Sloane (1999) NSWDRGC 3 R. v. Delk (1999) 46 NSWLR 340, 344 Smith v. Desmond (1965) AC 960 R. v. Donnally (1799) 1 Leach 193 R. v. Walls (1845) 2 Carrington & Kirwan 214 R. v. Gnosil (1824) 1 Carrington & Payne 304 R. v. Lapier (1784) 1 Leach 320 R. v. Moore (1784) 1 Leach 335 R. v. Mason (1820) Russell & Ryan 419 Giorgianni v. The Queen (1984-1985) 156 CLR 473; 58 ALR 641 Jiminez v. The Queen (1992) 173 CLR 572; 106 ALR 162 Reg. v. Kroon (1990) 52 A Crim R 15, 18
DECISION:	See paragraph 51 of judgment

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40801/99

POWELL, JA
STEIN, JA
HODGSON, CJ in Eq.

Tuesday 16 May 2000

JUDGMENT

CHANDLER V. THE DIRECTOR OF PUBLIC
PROSECUTIONS & ANOR .

1 POWELL JA: I have read in draft the Judgment which has been prepared by Hodgson CJ in Eq with which Judgment I understand Stein JA to agree. I regret, however, that I am unable to concur with their Honours' views as to the proper disposition of the present application . 2 I note that, in the course of his Judgment (para. 17), Hodgson CJ in Eq expresses the view that the use of the word "charged" in s.5(2) of the Drug Court Act indicates that it is the elements of the charge which are significant and not the particular conduct which had led to the subject person being charged, and expresses his agreement with the Judgment of Judge Murrell in R. v. Ranse (1999) NSWDRGC 2 in this respect. Despite his Honour having expressed that view, he, later in the course of his Judgment (para. 30), expresses the opinion that, so long as the conduct leading to the charge is voluntary, the circumstance that there may be no advertence to its dangerousness, and no intention of a violent outcome, does not prevent the conduct being called violent conduct, an opinion which, since it places stress on the actual conduct, and the consequences of that conduct which led to the subject person being charged is, in my view, difficult, if not impossible, to reconcile with his Honour's earlier expressed view that is it is the elements of the offence charged rather than the actual conduct which is the determinant for the purposes of s.5(2)(d) of the Act. A similar difference in approach can be seen between the Judgment of Judge Murell in R v. Ranse supra and her Honour's later Judgment in R. v. Sloane (1999) NSWDRGC 3, where her Honour held that a person charged with the offence of robbery (Crimes Act 1900 s.94) where the robbery involved a threat rather than the actual use of physical force, is not excluded from the class of "eligible persons". 3 If I may, with respect, say so, the approach apparently favoured by Hodgson CJ in Eq and Judge Murrell reflects a degree of confusion of thought, as is made apparent by the following passage in the Judgment of Judge Murrell, at first instance, in the present case where her Honour said:

"In my view, the expression 'violent conduct' looks at the nature of the relevant conduct rather than the intent of the conduct. If violence in the sense of actual force is an element of the offence in question, the offence is 'an offence involving violent conduct' and the offender is excluded."


(my emphasis)

4 A similar degree of confusion of thought is revealed by the following passage in the Second Reading speech of the Hon. Paul Whelan, Minister for Police, when the Bill which became the Drug Court Act 1998 ("the Drug Court Act") was in the Assembly Parliamentary Debates - Assembly 27 October 1998 p. 9031:

"The Drug Court programme will deal only with offenders who commit certain categories of offence. 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, offences involving stealing from a 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."
(my emphasis)

5   The offences of robbery - the subject of the charge in R. v. Sloane supra - assault with intent to rob and steal from the person - the subject of the charge in R v. Ranse supra - are all dealt with together in s.94 of the Crimes Act 1900 and the same maximum penalty is prescribed for each. As was said by Smart AJ in R v. Delk (1999) 46 NSWLR 340, 344:

"These offences are seen as part of an overall scheme dealing with the graver thefts where there is violence or putting in fear or the potential for violence exist ."


(my emphasis)

6   While violence is not a necessary ingredient in the offence of stealing from the person, the elements necessary to constitute the crime of robbery are:

1. the unlawful taking and carrying away of property of some value;

2. from the person of another, or in his presence, or from under his immediate and personal care and protection;

3. against his will;

4. either by force or putting him in fear; and

5. with the intention of permanently depriving a person of such property.

The essence of the offence is that violence is done, or threatened, to the person having custody of the property, who stands between the robber and the property in order to prevent or overcome his resistance and to oblige him to part with the property and submit to the thief stealing it; the offence against the person and the theft are combined ( Smith v. Desmond [1965] AC 960 ).

7   It follows that, while a sudden taking or snatching of property from a person unawares is not, of itself, sufficient to constitute robbery (R v. Donnally (1799) 1 Leach 193; R v. Walls (1845) 2 Carrington & Kirwan 214), it may constitute robbery in a case where there has been a struggle or some injury (R v. Gnosil (1824) 1 Carrington & Payne 304; R v. Lapier (1784) 1 Leach 320; R v. Moore (1784) 1 Leach 335; R v. Mason (1820) Russell & Ryan 419). 8   What I have written will make it clear that, although violent conduct, or the threat of violent conduct, is an essential element of the crime of robbery, physical injury to the victim is not. Such injury is, however, an element in the crimes provided for by successive sections, s. 95 - robbery or assault with intent to rob in circumstances of aggravation - s. 96 - robbery with wounding - s. 98 - robbery with arms or in company and wounding - the first of which additional crimes carries a maximum sentence of twenty years and the second and third of which additional crimes carries a maximum sentence of twenty-five years. 9   The confusion of thought involved in the approach in fact adopted by Judge Murrell in the two cases - R v. Ranse and R v. Sloane- to which I have earlier referred, is pointed up by the facts in each case. 10   In R v. Ranse the relevant charge with which her Honour was concerned to deal was that the accused "did steal a chattel, i.e. a handbag, $40.00 and personal papers the property of Hong Lin from the person of Hong Lin". The brief facts upon which the Crown relied in support of that charge, as recorded by her Honour were as follows:

"At about 5.00 p.m. 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 plates as he drove away. As a result of her fall, Mrs. Lin had 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."
Despite the fact that, as her Honour observed, the circumstances could well have warranted a conviction for robbery or assault with intent to rob, her Honour held that as violence is not an element of the offence of steal from the person - the offence with which the accused was charged - the accused was not rendered ineligible by the provisions of s.5(2) of the Drug Court Act.

11   In R v. Sloane the accused was indicted for the offence of robbery and indicated an intention to plead guilty to that offence. As recorded by her Honour, the facts upon which the Crown relied to establish that offence were:

"… that on 22 November 1998, the accused took a small serrated steak knife from his home and placed it under his shirt. At about 8.40 p.m. he entered a chemist shop close to his home. He walked 'calmly' up to a shop assistant, placed a plastic bag on the counter in front of her and said:
'This is a hold-up. Put the notes in the bag. Don't touch anything. Don't press anything. If customers come in don't say or do anything.'
According to this shop assistant, the accused, 'wasn't violent'. The pharmacist who was present in the shop activated a pocket hold-up alarm. She walked to the cash register, opened it and handed $75.00 to the accused. The accused ran from the shop. Although the pharmacist noticed the accused had his right hand inside his open shirt and saw something inside his shirt, neither the pharmacist nor the shop assistant was aware that the accused was armed with a steak knife.
Three weeks later, police attended the accused's home. He ran and hid under the house. When he emerged he admitted the robbery. He produced the clothes which he had worn at the time of the robbery and pointed out the knife which he had concealed under his shirt. He said that he had taken the knife in case he was confronted. He said that he had used the proceeds of the robbery to purchase heroin."
Despite the fact that violence, or the threat of violence, is an essential element of the crime of robbery, Judge Murrell held "that a person charged under s. 94 of the Crimes Act 1900 with a robbery which involves a threat (rather than the actual use of physical violence) is not thereby excluded from the s.5 class of 'eligible persons'", a conclusion which, if I may say so, I find difficult, if not impossible, to reconcile with the approach taken by her Honour in R. v. Ranse supra .

12   The confusion of thought to which I have earlier referred is continued in the Judgment of Judge Murrell at first instance in the present case in which, as I have earlier recorded, her Honour held that:

"… the expression 'violent conduct' looks at the nature of the relevant conduct rather than the intent of the conduct. If violence in the sense of actual violence is an element of the offence in question, the offence is 'an offence involving violent conduct' and the offender is excluded."
Having so determined, her Honour continued:

"The accused is charged with offences under s.52A of the Crimes Act 1900 which have as elements the driving of a vehicle which is involved in an impact with a person. Such conduct is violent conduct, i.e. conduct involving actual force. I accept the Crown's submission that this is a case of actual violence. Therefore s.5(2)(b) of the Act renders the accused ineligible for sentence under s.7(2) of the Act."

13   In Giorgianni v. The Queen (1984-1985) 156 CLR 473; 58 ALR 641, a case in which the High Court was concerned to deal with s.52A of the Crimes Act in an earlier form, Mason J (as he then was) said CLR at 490; ALR at 563:

"The misdemeanour created by s.52A is capable of being committed by a person who is the driver of a motor vehicle. The section was introduced because of the reluctance of juries to convict motorists of manslaughter in the factual circumstances which it envisages: Attorney-General (NSW) v. Bindoff ((1953) 53 SR(NSW) 489, at p.490). However it is apparent from the terms of the section that mens rea is not an essential element of the misdemeanour which it creates. In order to support a conviction under s.52A it is sufficient that death or grievous bodily harm to a person was occasioned through the specified means at a time when the defendant was driving under the influence of intoxicating liquor or of a drug or at a speed or in a manner dangerous to the public. It is well settled that the test for determining whether the defendant was driving 'in a manner dangerous to the public' is an objective one which takes into account 'all matter s connected with the management and control of a car by a driver when it is being driven': ( R v. Coventry ((1938) 59 CLR 633, at p.639). Those matters of course include the mechanical condition of the motor vehicle: cf Reg v. Spurge ([1961] 2 QB 205; Reg v. Robert Millar(Contractors) Limited ([1970] 2 QB 54). But the language of the section does not exclude the operation of a defence of mistake of fact on reasonable grounds and the defendant will not be liable in a case in which the dangerous manner of driving is due to a mechanical defect if neither knew nor ought to have known the existence of that defect: R v. Coventry p. 638 ; Reg v Spurge supra . "
while Wilson, Deane and Dawson JJ said CLR at 499; ALR at 659 :

"The manner in which a vehicle may be driven includes its mechanical condition and if that condition is defective, it may, by reason of that fact, be driven in a manner dangerous to the public: see R v. Coventry (1938) 59 CLR 633 esp at 639 ; Reg v. Spurge [1961] 2 QB 605 ; Reg v. Robert Millar (Contractors) Limited [1970] 2 QB 54. The offence created by s.52A does not require the prosecution to prove any state of mind on the part of the driver, although his act of driving must be conscious and voluntary and he may have a defence of mistake of fact on reasonable grounds: R v. Coventry (at p.638). It is unnecessary to pursue in this case whether the driver must establish such a defence or whether the effect of his raising it is to cast upon the Crown the ultimate burden of disproving it beyond reasonable doubt. It is sufficient to observe that the defence is available. Otherwise the mental state of the driver is irrelevant for the section imports an objective standard by which his driving is to be judged."

14   In Jiminez v. The Queen (1992) 173 CLR 572; 106 ALR 162, a case concerned with a charge of culpable driving contrary to s.52A of the Crimes Act 1900, as it was in June 1998, in which case the accused said that he had lost control of his motor vehicle when he fell asleep, the High Court, in a joint Judgment - Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ - said CLR at 577 et seq; ALR at 165 et seq.:

"Upon the evidence, it appears there was a short period of time after the applicant fell asleep and before the impact during which the applicant awoke and attempted to regain control of the car. It was not suggested that, while he was attempting to regain control, the applicant was driving dangerously. Drivers are often confronted with an emergency which requires them to take steps to avoid an accident. Even if the evasive action fails to avoid the accident it does not necessarily amount to driving in a dangerous manner.
The offence of culpable driving as it applies to the present case requires a motor vehicle to have been driven in a manner dangerous to the public at the time of the impact which occasioned death. Even if the motor vehicle was not being driven dangerously at the precise moment of impact, a preceding period of driving in a manner dangerous may be so nearly contemporaneous with the impact as to satisfy this element of the offence. Contemporaneity is a question for the jury."
and, then, after a reference to the Judgment of King CJ in Reg v. Kroon (1990) 52 A Crim R 15, 18 :

"As King CJ recognises, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact to satisfy the requirement of s.52A but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep (because during that time his actions were not conscious or) the words in parentheses do not appear in - and appear to have been omitted as a result of oversight from - the CLR, but appear in the ALR, report. voluntary. And, for the reasons which we have given, if the driver's actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.
………
It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that, as a matter of objective fact, his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of driving, the lighting conditions (including whether it was night or day) and the heating or ventilation of the vehicle are all relevant considerations. And, of course, it will be necessary to consider how tired the driver was. If there was a warning as to the onset of sleep that may be some evidence of the degree of his tiredness. And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of his tiredness. But so far as 'driving in a manner dangerous' is concerned the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that, in the circumstances, his driving was a danger to the public. The various matters which bear on that question, and the way in which they bear on it, should be carefully drawn to the attention of the jury."

15   As the passages from the Judgments of the High Court in Giorgianni v. The Queen supra and Jiminez v. The Queen supra make clear, while the essential elements of an offence under s.52A of the Crimes Act are, first, the driving by the accused in the manner, or while in the condition, provided for in s.52A(1)(a)-(c), s.52A(3)(a)-(c), and an impact - either in the conventional sense or in one or other of the senses provided for in s.52A(5), (6) - occasioning death or grievous bodily harm, each of which elements is to be regarded as contemporaneous in the sense discussed in those Judgments, violent conduct in the conventional sense is not an element of the offence. 16 This being so, it follows that, if - as I believe to be correct - when determining whether an accused is "an eligible person", the Drug Court is required to consider whether violent conduct is one of the elements of the offence with which the accused is charged, Judge Murrell erred in holding that violent conduct was an element of the offences with which the Claimant was charged in the present case. 17 In my view the Order sought in paragraph 1 of the Amended Summons, and the Declarations sought in paragraphs 2 and 3 of the Amended Summons should be made and the proceedings should be remitted to the Drug Court to be dealt with according to law. The First Opponent should pay the Claimant's costs of the Summons. 18 STEIN JA: I have had the benefit of reading the draft judgment of Hodgson CJ in Eq and agree with it and the orders his Honour proposes. 19 The question of construction of ‘an offence involving violent conduct’ in s 5(2)(b) of the Drug Court Act 1998 is a difficult one and finely balanced. 20 In my opinion, the policy behind the legislation, taking into account its objects, scope and purpose, lead me to favour the construction reached by Hodgson CJ in Eq. In my view, offences against s 52A of the Crimes Act 1900 are offences involving ‘violent conduct’. 21 HODGSON, CJ in Eq INTRODUCTION On 18th November 1998, the claimant Paul Chandler pleaded guilty to three charges: (1) that on 27th October 1997 at Bass Hill he did steal a motor vehicle; (2) that on 27th October 1997 at Bass Hill he did drive a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning death in circumstances of aggravation; and (3) that on 27th October 1997 at Bass Hill he did drive a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning grievous bodily harm in circumstances of aggravation. 22 On 11th May 1999, Judge Latham in the District Court referred the claimant to the Drug Court to be dealt with for these offences, pursuant to the Drug Court Act 1998. 23 On 16th June 1999, Judge Murrell, Senior Drug Court Judge, determined that the claimant had been charged with offences involving violent conduct within s.5(2)(b) of the Drug Court Act, and that accordingly he was ineligible for sentence under s.7(2) of that Act. 24 By the Amended Summons in these proceedings, the claimant seeks declarations that the offences with which he was charged were not offences involving violent conduct within s.5(2) of the Drug Court Act, and consequential orders. 25 It is common ground now that the claimant was incorrectly charged, in that the circumstances of aggravation alleged to be involved were only introduced as circumstances of aggravation into s.52A of the Crimes Act on 16th January 1998. Accordingly, it is common ground that charges (2) and (3) will have to be amended so as to remove reference to circumstances of aggravation. The claimant intends to plead guilty to these amended charges. Accordingly, it is common ground that these proceedings should be determined on the assumption that the claimant is charged with these amended charges. 26 The particular circumstances of the offence may be summarised as follows. At 5.50pm on 27th October 1997, the claimant was driving a stolen motor vehicle on the Hume Highway at an estimated speed of 90kph in a 70kph zone. He changed lanes "in an aggressive manner" and proceeded to weave in and out of traffic. The front offside portion of his vehicle collided with the rear of the offside portion of another vehicle. He attempted to correct the vehicle but lost control of it. It veered at right angles across the roadway, mounted the median strip and became airborne. It landed on the roof of an oncoming white Laser vehicle, rolled into a blue Magna vehicle and came to rest upside-down. The driver of the Laser later died of injuries sustained in the collision, and her passenger suffered a mild brain injury.

LEGISLATION

27 The elements of the relevant charges are set out in s.52A(1), (3) and (5), in the following terms:

52A(1) A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug; or
(b) at a speed dangerous to another person or persons; or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 10 years.

...(2)
(3) A person is guilty of the offence of dangerous driving occasioning grievous bodily harm if the vehicle driven by the person is involved in an impact occasioning grievous bodily harm to another person and the driver was, at the time of the impact, driving the vehicle:
(a) under the influence of intoxicating liquor or of a drug; or
(b) at a speed dangerous to another person or persons; or
(c) in a manner dangerous to another person or persons.
A person convicted of an offence under this subsection is liable to imprisonment for 7 years.

...(4)
(5) For the purposes of this section, the circumstances in which a vehicle is involved in an impact occasioning the death of, or grievous bodily harm to, a person include if the death or harm is occasioned through any of the following:
(a) the vehicle overturning or leaving a road while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(b) an impact between any object and the vehicle while the person is being conveyed in or on that vehicle (whether as a passenger or otherwise);
(c) an impact between the person and the vehicle;
(d) the impact of the vehicle with another vehicle or an object in, on or near which the person is at the time of the impact;
(e) an impact with anything on, or attached to, the vehicle;
(f) an impact with anything that is in motion through falling from the vehicle.

28 The matter requires consideration of some sections of the Drug Court Act. The objects of the Act are set out in s.3, as follows:

3(1) The object of this Act is to reduce the level of criminal activity that results from drug dependency.
(2) This Act achieves that object by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs.
(3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen.

29 "Eligible person" is defined in s.5, as follows:

5.(1) A person is an eligible person if:
(a) the person is charged with an offence, other than an offence referred to in subsection (2), and
(b) the facts alleged in connection with the offence, together with the person's antecedents and any other information available to the court, indicate that it is highly likely that the person will, if convicted, be required to serve a sentence of full-time imprisonment, and
(c) the person has pleaded guilty to, or indicated that he or she intends to plead guilty to, the offence, and
(d) the person appears to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and
(e) the person satisfies such other criteria as are prescribed by the regulations.

(2) A person is not an eligible person if the person is charged with:
(a) an offence punishable under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, not being an offence that (under Part 9A of the Criminal Procedure Act 1986) is capable of being dealt with summarily, or
(b) an offence involving violent conduct or sexual assault, or
(c) any other offence of a kind prescribed by the regulations.

30 Relevant provisions concerning acceptance into the program contemplated by the Act are ss.6 and 7, which are in the following terms:

6(1) This section applies to such courts and proceedings as are prescribed by the regulations.
(2) It is the duty of a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court:
(a) to ascertain whether the person appears to be an eligible person, and
(b) if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence, and
(c) if so, to refer the person to the Drug Court to be dealt with for the offence.
(3) The power conferred on a court by this section is to be exercised as soon as practicable after the person first comes before the court in connection with the offence, but may be exercised at any time:
(a) in the case of a court exercising functions under the Justices Act 1902, before the court has committed the person for trial or sentence in relation to that offence under Division 1 of Part 4 of that Act, and
(b) in any case, before the person is sentenced or re-sentenced for the offence.

7(1) This section applies to a person who has been referred to the Drug Court under section 6.
(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) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations,
(d) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section,
(e) that the person has been informed of the Drug Court's powers under Division 2 and of the respective consequences, as regards the sentence to be imposed under section 12, of the person's compliance or non-compliance with a program.
(3) On or within 14 days after sentencing the person, the Drug Court:
(a) must make an order imposing on the person the conditions that the person has accepted as referred to in subsection (2) (d) (the person's "program"), and
(b) must make an order suspending execution of the sentence for the duration of the person's program (the person's "suspension order").
(3A) An order referred to in subsection (3) (a) or (b) may be made in the absence of the person in respect of whom it is made.
(4) A person who is convicted and sentenced by the Drug Court under this section with respect to an offence for which the person has been referred to the Drug Court under section 6 may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than an offence referred to in section 5 (2)), whether or not the person has been referred to the Drug Court under section 6 in relation to that other offence.
(4A) Subsection (3) applies to a sentence under subsection (4) in the same way as it applies to a sentence under subsection (2).
(5) Nothing in this Act entitles a person to be convicted and sentenced under this section, and no appeal lies against any decision by the Drug Court not to convict or sentence a person under this section.
(6) In this section, a reference to the convicting and sentencing of a person is, in the case of a person who is referred to the Drug Court after having been convicted, a reference to the sentencing of the person only.

ISSUES

31 It is common ground that the reference by Judge Latham was properly made under s.6. Judge Murrell determined that the claimant satisfied the requirements of s.5(1)(d), but was ineligible because of s.5(2)(b), so that the requirement of s.7(2)(a) was not met. Accordingly, her Honour did not enter into consideration of the other matters in s.7(2). 32 The sole question argued before us was whether or not Judge Murrell was correct in her determination as to s.5(2)(b). There is no dispute that, if we think her Honour was wrong on this point, we should grant relief substantially as sought: cf. Craig v. State of South Australia (1995) 184 CLR 163, Waterhouse v. Gilmore (1988) 12 NSWLR 270 at 276; Saffron v. DPP (1989) 16 NSWLR 397 at 418. 33 The question before us involves consideration of two matters. First, does the application of s.5(2)(b) depend upon the elements of the offence with which the person is charged, or the circumstances of the particular offence actually committed by that person? And second, what is the nature of the violent conduct referred to, and is intent or recklessness as to violence required?

ELEMENTS OR CIRCUMSTANCES?

34   On the first question, it was submitted by Mr. Smith for the Director of Public Prosecutions that one could take account both of the essential elements of the offence and of the conduct of the person on the particular occasion. 35   This has some support from the second reading speech in the Legislative Assembly on 27th October 1998, which included the following statement:

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, offences involving stealing from a 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.

36 The reference in that speech to committing of offences, and the phrase "provided there is no violence", suggests that the actual conduct of the person in relation to the offence is relevant. 37 However, in my opinion, the use of the word "charged" in s.5(2) points very strongly in the other direction, that is, suggests very strongly that it is the elements of the charge which are significant, not the particular conduct. That view was expressed in an earlier decision of Judge Murrell in R. v. Ranse (1999) NSWDRGC 2; and I agree with that decision.

VIOLENT CONDUCT

38 Turning to the second question, there is no definition in the Drug Court Act of "offence involving violent conduct" or "violent conduct" or "violent". 39 There are definitions of some similar words and phrases in other Acts: for example, of "personal violence offence" and "violence" in ss.4 and 93A of the Crimes Act, and "offence involving violence" in s.48E of the Justices Act. There is also a definition of "violent offence" in s.31(1) of the Criminal Justice Act 1991 (UK), considered in the cases of R. v. Cochrane (1994) 15 CR AppR(S) 708 at 711, R. v Bibby (1995) 16 CR AppR(S) 127 at 129, and R. v. Ragg (1995) 4 AllER 155. I do not think that any of these definitions or cases are of assistance here. 40 We were also referred to dictionary definitions of violence and violent. Without quoting them, I think it is fair to say that relevantly the dictionary definitions suggest that violence generally refers to the application of rough, strong, physical force.

Submissions

41 For the claimant, Ms. Burgess submitted that this was a remedial Act and should be given a generous construction, so that s.5(2)(b) should be construed narrowly; and Ms. Burgess referred to Bull v. Attorney-General (NSW) (1913) 17 CLR 370 at 584, and to R. v. Sloane (1999) NSWDRGC 3. 42 Ms. Burgess submitted that s.52A created an offence of strict liability. The only conduct involved was driving, which had to be conscious and voluntary. The quality of dangerousness was something objective, and need not be adverted to. The causation of death or grievous bodily harm need only be unintended consequences. See R. v. Harris (1967) 85 WN 1 at 7, R. v. Coventry (1938) 59 CLR 633 at 639. As a matter of ordinary English usage, dangerous driving was not violent conduct; and ordinary English usage was the proper test: see Seay v. Eastwood (1976) 1 WLR 1117 at 1121, NSW Associated Blue Metal Quarries Ltd. v. F.C.T. (1956) 94 CLR 509 at 514. 43 Mr. Smith for the Director of Public Prosecutions submitted that the Act was intended to strike a balance between rehabilitation and the need to punish offenders. It was directed towards people who break the law to feed their habit. There was a limit to what could be done, so that there were excluded from the ambit of the Act offences involving violence and sexual assault, because of the great public concern about offences of this kind. Shortly before passing the Drug Court Act, the Parliament had in January 1998 added driving under the influence of drugs as a further circumstance of aggravation of offences under s.52A, thereby expressing abhorrence to conduct of this kind. 44 Mr. Smith submitted that all offences under s.52A involve violent conduct, that is conduct involving the application of physical force injurious or destructive to another person, of such gravity that death or grievous bodily harm ensues: see A.G v. Binoff (1954) 70 WN(NSW) 309, R. v. Buttsworth (1983) 1 NSWLR 658. 45 The plain intention of the legislature was that the offence of causing death by dangerous driving was to be considered a most serious offence: R. v. Slattery (1996) 90 ACrim.R 519, R. v. Jurisic (1998) 45 NSWLR 209 at 227.

Decision

46   I accept, as observed by Judge Murrell in Ranse, that the Drug Court Act had as one of its objects the provision of a benefit to offenders; and I agree with her Honour that s.5(2)(b) should be construed quite strictly, as it removes a benefit which would otherwise accrue to an offender. Also, while I accept that the Act appears to be mainly directed at benefiting people who commit crimes to feed their habit, I do not think that consideration has any significant bearing on the construction of s.5(2)(b); although plainly it would be of relevance to the exercise of the Drug Court's discretion under s.7. 47 Undoubtedly, a s.52A offence involves violence being done to the victim. However, it is submitted that it does not involve violent conduct, because it is no element of the offence that the violence, or even the dangerousness of the driving, need be intended or even adverted to as a possible element or consequence of the conduct. It is submitted that, in ordinary language, we would not characterise driving as violent conduct, even if it has such unintended consequences. 48 There is some force in the submission that driving would not normally be regarded as violent conduct. There seem to me to be two possible reasons why this might be so. First, there is the circumstance that any violence is indirect, in that it is mediated by the vehicle: in this respect, it might be similar to violence to a person caused by pulling a trigger or pushing a button. The second reason relates to the circumstance that the dangerousness of the driving and the violent outcome need not be intended and may possibly not even be adverted to. 49 As to the first reason, in my opinion the circumstance that violence is done to a person, not by vigorous physical activity, but through some instrument that may be activated without any vigorous physical activity, does not prevent the doing of violence to a person by those means being properly described as violent conduct. There is perhaps a latent conflict in ordinary usage here: the use of a weapon which does violence to a person would ordinarily be regarded as aggravating violent conduct, whereas on the other hand, it may be seen as negativing violent conduct because it reduces to near-inactivity the physical action required from the person causing the violence. Even though one must ultimately apply the ordinary meaning of words, I think this should be done with due consideration; and on the basis of due consideration, my view is that the circumstance that violence is caused to a person by an instrument activated by minimal physical activity does not make that activity other than violent conduct. 50 Turning to the second reason, that which concerns intention or advertence, my opinion is that, so long as the conduct itself is voluntary, the circumstance that there may be no advertence to its dangerousness, and no intention of the violent outcome, does not prevent the conduct being called violent conduct. The elements of the offence in question here include voluntary conduct, which is objectively dangerous, and which does in fact do violence to a person. The conduct involves what can be regarded as a dangerous weapon; so it is not as if the objective dangerousness of the conduct, or the violent outcome, are matters that could be considered foreign to the voluntary conduct. 51 For those reasons, in my opinion the s.52A offences with which the claimant is to be charged are offences involving violent conduct within s.5(2)(b) of the Drug Court Act, and I would dismiss the summons.

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