Director of Public Prosecutions v Hilzinger & Drug Court of New South Wales

[2011] NSWCA 106

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions v Hilzinger & Drug Court of New South Wales [2011] NSWCA 106

Hearing dates:

18 April 2011

Decision date:

17 May 2011

Before:

Giles JA at [1]
Hodgson JA at [2]
Whealy JA at [3]

Decision:

Summons is dismissed.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CRIMINAL LAW - Certiorari - Application pursuant to s 69 Supreme Court Act 1970 - eligibility test under s 5(2) of the Drug Court Act 1998 - elements of offence relevant, not circumstances of offence - discretion available to reject offender even where otherwise eligible - violent conduct in eligibility test means violence to person - damage to property may be considered under discretion but not relevant to exclude offender under eligibility test

Legislation Cited:

Crimes Act 1900 ss 105A, 112(2)
Drug Court Act 1998 ss 5, 6(2)(b), 6(2)(b), 6(2)(c), 7A, 7D, 10, 11, 12, 16(1), 16(2)
Drug Court Regulation 2010 s 5

Cases Cited:

Chandler v Director of Public Prosecutions [2000] NSWCA 125; 49 NSWLR 1
Director of Public Prosecutions v Ebsworth [2001] NSWCA 318; 124 A Crim R 410
R v McCrossen [1991] TAS R 1
Breeze v R [1999] QCA 303; 106 A Crim R 441
Tzaidas (BHT Tzaidas) v Child & Ors [2004] NSWCA 252; 61 NSWLR 18 at [29] - [35] per Giles J;
Fobco Pty Ltd v Harvey (1996) 40 NSWLR 454 at 462 per Beazley JA
Nguyen v Nguyen (1990) 169 CLR 245 at 269 per Dawson, Toohey and McHugh JJ
Gett v Tabet [2009] NSWCA 76 at [273]ff
Regina v Kenny Li (Unreported, New South Wales Court of Criminal Appeal, 9th July 1997, Abadee and Studdert JJ)
Marshall v R [2007] NSWCCA 24 at [10]
R v AD [2005] NSWCCA 208 at [22]
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504 - 505
K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [59] per French J
R v Butcher [1986] VR 43; (1985) 16 A Crim R 1
Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384
Khoury v Government Insurance Office of (NSW) (1984) 165 CLR 622 at 638
Waugh v Kippen (1986) 156 CLR at 164
R v Harris [2011] NSWCCA 105 per Simpson J
R v Cook [2001] NSWDRGC 9
Antonelli v Secretary of State for Trade and Industry [1998] QB 948 per Beldam LJ

Texts Cited:

Bureau of Crime Statistics and Research - Crime and Justice Bulletins Nos 52 p8 and 88 p6
NSW Parliamentary Debates, 27 October 1998, p 9032

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Applicant)
Christopher William Hilzinger (First Respondent)
Drug Court of New South Wales (Second Respondent)

Representation:

Counsel:
D Arnott SC (Applicant)
R Burgess (First respondent)
Solicitors:
Director of Public Prosecutions (Applicant)
S E O'Connor (First respondent)

File Number(s):

2010/250581

 Decision under appeal 

Date of Decision:

2010-05-18 00:00:00

Before:

Dive DCJ

File Number(s):

2010/50

Judgment

1. GILES JA: I agree with Whealy JA.

1. HODGSON JA: I agree with Whealy JA.

1. WHEALY JA: This is an application brought by the Director of Public Prosecutions in the name of the Crown, to set aside findings and orders made in the Drug Court of New South Wales on 18 th May and 2 nd June 2010. The critical complaint relates to the finding by his Honour Senior Judge Roger Dive (the primary judge), that Christopher Hilzinger (the first respondent) was an 'eligible person' to be entered into the Drug Court's program. This was the ruling made on 18 th May 2010. The Drug Court Act 1998 (NSW) and its beneficial program is only available, relevantly, to persons who fall within the definition of an "eligible person" in section 5 of the Act. The legislation denies eligibility if the person is charged with an offence involving violent conduct. The simple point at issue in this application is whether the first respondent fell into this category so as to be ineligible for Drug Court assistance.

Grounds of appeal

1. The summons seeks to quash not only the ruling made on 18 th May 2010, but the sentence imposed by his Honour on 2 nd June 2010. It seeks a declaration that the second respondent erred in law in ruling that the first respondent was an eligible person for the purposes of section 5 of the Drug Court Act 1998 . It seeks an order that the matter be remitted to his Honour to be determined according to law.

1. The grounds relied upon assert that his Honour fell into jurisdictional error in determining that the offence pursuant to subsection 112(2) of the Crimes Act 1900 , with which the first respondent was charged, was not an offence involving violent conduct for the purposes of section 5 of the Drug Court Act 1998 in:-

(1) Holding that, in making that determination, the court was entitled to have regard only to the elements of the offence with which the first respondent was charged.

(2) Failing to take into consideration, in making that determination, violent conduct which was connected with the elements of the offence with which the first respondent was charged, and which the court was entitled to take into account when exercising its ordinary sentencing discretion.

(3) Failing to take into consideration, when making that determination, the damage to property alleged in the offence, pursuant to subsection 112(2) of the Crimes Act 1900 with which the first respondent was charged.

The reasons of his Honour Senior Judge Dive

1. The reasons given by his Honour for the finding of eligibility on 18 th May 2010 are before this court. The basic facts are set out by his Honour in paragraphs 1 and 2 of his judgment. I shall set this portion out in full:-

1. Mr Hilzinger is a 19 year old man who has committed a number of offences, including a serious crime. Unusually for a man referred to the Drug Court, he has never been in trouble before. On 3 rd June 2009, Mr Hilzinger has gone with four other offenders to Lockies Hotel at Leppington in the middle of the night. Wearing balaclavas, the five have gained access to the hotel, confronted and detained Mr Graham, the cleaner, and then caused very significant damage to the hotel by driving both a 4WD and a forklift into the hotel in an attempt to steal a safe and an ATM. A silent alarm was activated, police attended, the offenders fled, and little was actually stolen. Mr Hilzinger was in fact the only person apprehended, as he was found nearby a short time later. Upon apprehension, he had in his possession a balaclava, gloves, and $1390. The money had come from breaking into the cigarette machine. Mr Hilzinger faces no other charges which involve violence towards the cleaner, Mr Graham, even though Mr Graham was kidnapped for a short time (having been taken for a drive at the beginning of this event), manhandled at one point, and then later detained in the staff room.

2. Mr Hilzinger has remained in custody since his arrest on 3 rd June 2009. When before the Local Court he indicated pleas of guilty, and was committed to the District Court for sentence. Those pleas were maintained when he appeared before Judge Murrell SC at the Campbelltown District Court on 31 st March 2010. After hearing submissions, he was then referred to the Drug Court under s 6 of the Drug Court Act 1998 for the principal offence of "aggravated break and enter and commit a serious indictable offence, namely damage property while in the company of four co-offenders". There are three additional charges to be taken into account on sentence: two matters of being carried in the stolen motor vehicle on the night in question, and the charge of stealing which relates to the cigarettes and money taken from the cigarette machine.

1. The primary judge was faced with a simple argument. He paraphrased it as an argument requiring the court to consider whether eligibility depended upon an "elements" or a "conduct" test. Did the language of subsection 5(2)(b) of the Drug Court Act 1998 require the Drug Court to confine itself to a consideration of whether violent conduct was one of the elements of the offence with which the accused was charged, or did it entitle it to look beyond the elements to any factual circumstance that the Crown might seek to prove, for example on sentence, to suggest that violent conduct had occurred in the commission of the offence?

1. It seems the primary judge had considered this issue in the past, and he drew upon decisions in the Drug Court (including his own) as background to the question that had been asked. Apart from these decisions, his Honour found decisive two decisions of this court which were binding on him. The first was the decision of the New South Wales Court of Appeal in Chandler v Director of Public Prosecutions [2000] NSWCA 125; 49 NSWLR 1. The second was the decision of the Court of Appeal in Director of Public Prosecutions v Ebsworth [2001] NSWCA 318; 124 A Crim R 410. His Honour found that each of these decisions supported the proposition that it was the elements of the charge that were significant, not the particular conduct. Based on these authorities, the primary judge found that there was no element of violent conduct in the charge laid against Mr Hilzinger. Consequently, the first respondent was, in terms of the sub-section, an eligible person.

1. The second argument urged upon the primary judge related to the fact that the Crown might have averred a circumstance of aggravation which alleged violent conduct, even though it had not. Section 105A of the Crimes Act 1900 defined "circumstances of aggravation" as "circumstances involving any one or more" of six circumstances. The Crown had argued that all six aggravating circumstances set out in section 105A applied to Mr Hilzinger's behaviour, even though only one had been pleaded. Mr Sean Flood of counsel had appeared for the first respondent at the hearing before the primary judge. He argued that the word "charged" should be given its normal meaning, and that the identification of which circumstances of aggravation the Crown relied upon was more than simply the identification of a particular. He submitted that the legislation is beneficial legislation and that it should be construed in that way. Finally, Mr Flood had drawn attention to the fact that although a charge of kidnapping had in fact been laid against the first respondent, it was later withdrawn and dismissed. The Crown had conceded that it could not prove that the offender was one of the males who accompanied the victim in his car, or that he was a party to any agreement that the victim would be driven away from the scene.

1. Ms Bloomfield, who then appeared for the Crown, had argued that any one of the available aggravating circumstances could have been averred in the charge, and that all or some of those factors might in due course be relevant and possibly taken into account on sentence. Ms Bloomfield argued that the choice of aggravating circumstances could not be the determining factor on the issue as to Mr Hilzinger's eligibility for a Drug Court program. To this submission, the primary judge responded as follows:-

"18. I cannot agree with that submission. The fact that there are other, alternate charges available which would have specified those alternate aggravating circumstances does not elevate those alternate aggravating circumstances to be elements of the subject offence. Those facts are, of course, relevant on sentence. But they are not an element of the offence charged, and would not have to be proved at trial. They will be relevant in any sentencing proceedings, including sentencing proceedings before the Drug Court.

19. The test provided for the Drug Court is to ascertain whether Mr Hilzinger has been charged with an offence involving violent conduct. The test is not whether he could have been charged with an offence involving violent conduct... This is beneficial legislation, it should be interpreted accordingly. It is perhaps obvious that if Parliament had wanted to exclude persons in relation to whom the facts of the case would be of violence to persons or property, it would have been very simple to draft section 5 accordingly.

20. I remain of the view, as expressed in Bruce , that the words "charged with an offence involving violent conduct" should be given their ordinary meaning, and that the clear line of authority is for an elements test. The prosecution has chosen to lay a particular charge, no doubt after considering the evidence available, and a plea of guilty has been entered to that charge. That is the only relevant offence with which he has been charged."

1. There was one additional matter dealt with by the primary judge. It appears that the Crown, in opposition to Mr Hilzinger's eligibility, had not raised the issue of damage to property. It had, however, been addressed by Mr Flood in his written submissions. In that circumstance, the primary judge gave his view on the matter, although strictly speaking he was not required to do so. In the instant case, there had been very considerable damage to property amounting to some $63,474. As to this, his Honour said:-

The fact that very substantial damage was done to the property does not render Mr Hilzinger ineligible. Breaking into premises was a crime anticipated by the legislators, and is specifically mentioned in the Second Reading Speech frequently referred to in the cases on section 5. So crimes involving damage to property were expected to be eligible offences. Unfortunately, it is the case that very considerable damage is sometimes occasioned to premises during break-ins. Very expensive shopfront windows or secure roller doors may be broken, or there may be extensive vandalism. It can also be, Mr Flood has pointed out, that great damage may be occasioned with no element of violence at all - with aerosol paint, for example. The fact that very significant material damage was done, as apart from (just) breaking a door or window to gain entry, does not elevate the offence to one which is an ineligible offence.

1. In all these circumstances his Honour confirmed his view that the second respondent was properly considered to be an eligible person for the purposes of section 5 of the Drug Court Act 1998 . Later, on 2 nd June 2010, the primary judge imposed a total sentence of 4 years imprisonment, the sentence being suspended upon the first respondent's entry into a drug program.

The Drug Court Act 1998

1. I shall now briefly mention the relevant portions of the Drug Court Act 1998 . The objects of the Act are stated in section 3, as follows:-

(a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and

(b) to promote the re-integration of such drug dependent persons into the community, and

(c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies.

1. The Act is to achieve its objects in relation to eligible persons by establishing a scheme under which drug dependent persons charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs (section 3(2)). The definition of an 'eligible person' appears in section 5, as follows:-

(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.

1. Subsection (2) provides that:

(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 Chapter 5 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.

1. Section 6 enables 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, to ascertain whether the person "appears to be an eligible person". The section enables the court, in the circumstances there mentioned, to refer the person to the Drug Court to be dealt with for the offence. Clause 4 of the Drug Court Regulation 2010 (which commenced on 1 September 2010, replacing the previous clause 4 of the now repealed Drug Court Regulation 2005 ) also mandates further conditions of eligibility, namely the offender must reside in a particular local government area, must not be suffering from any mental condition that could prevent or restrict the person's active participation in a program, be over the age of 18 years, and any criminal proceedings against the person for the relevant offence must not be within the jurisdiction of the Children's Court. Section 7A of the Act empowers the Drug Court to determine whether it will accept a person into the Drug Court program in relation to an offence. The Drug Court must be satisfied, for example, that the person is an eligible person, that he or she has pleaded guilty to the offence, and that, having regard to the person's antecedents, it is appropriate for the person to participate in a program under the Act. The Drug Court must also be satisfied that there are appropriate facilities to supervise and control the person's participation in a program, and that the person accepts the conditions to be imposed for the purpose of the program. Upon satisfaction of these and other matters, the court is then required to convict and sentence the person in accordance with the Crimes (Sentencing Procedure) Act 1999 , but must suspend the execution of the sentence for the duration of the person's program and impose conditions. The orders thus made will incorporate a number of conditions relating to supervision and behaviour. These may include sanctions for non-compliance with the program and rewards for satisfactory compliance. The conditions may be varied throughout the implementation of the program. Sections 10 and 11 contain provisions for the termination of a program imposed on a person. Section 12 enables the court, upon termination of the program, to reconsider the offender's initial sentence and to determine the final sentence to be imposed. It cannot be greater than the initial sentence.

Submissions of the Crown

1. Mr David Arnott SC of counsel appeared for the Crown. Counsel noted, in his written submissions, that the first respondent had in fact been charged with, and pleaded guilty to, two counts of knowingly being carried in a stolen conveyance (contrary to section 154A(1)(b) of the Crimes Act 1900 ) and one count of larceny (section 117 of the Crimes Act 1900 ). Counsel conceded, however, that, for the purposes of this application, it was only necessary to consider the principal charge under subsection 112(2) of the Crimes Act 1900 - aggravated break and enter and commit serious indictable offence. The indictable offence and its circumstance of aggravation, as pleaded, was damage to property while in the company of four offenders. Counsel then recited in detail the history of the matter as I have briefly set out earlier. Counsel, in his written submissions, suggested that two questions arose for determination:-

First, where a court takes violent conduct into account on sentence for the offence charged, should that violent conduct be taken into account when determining the threshold question of whether that person is eligible to enter the drug court program? Secondly, are there offences where the wording provides inadequate guidance as to whether the offence could be considered violent conduct? And, if so, can the conduct of the offender be considered in such a case?

1. Counsel accepted that the decision of this court in Chandler v DPP appeared to stand in his way. He acknowledge that in that case, Hodgson CJ in Eq (with whom Stein JA agreed) stated at [37]:-

...the use of the word "charged" in s5(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.

1. Similarly, counsel acknowledged that the construction of the legislation favoured in Chandler v DPP had been followed in DPP v Ebsworth. In that case, the offender had been charged with the offence of robbery whilst armed with an offensive weapon, to wit, a baseball bat. The offender was found to be ineligible under section 5(2) of the Act by the simple process of confining attention to the criminal pleading, as distinct from the facts. In that case, Mr Arnott acknowledged, Mason ACJ had said, at [1]:-

... a necessary element of the offence of the robbery charged will be proof of the use or threat of violence.

1. Counsel's first argument suggested, however, that neither Chandler nor Ebsworth had directly dealt with the scope of the meaning of the word "involving" in the phrase "an offence involving violent conduct", found in section 5. Moreover, he argued that neither decision had dealt directly with the issue that he maintained arose for determination in the present matter.

1. Secondly, counsel submitted that the phrase "an offence involving violent conduct" gave rise to a broader meaning than simply the elements of the charge, "on the face of the record". The distinction sought to be drawn by Mr Arnott might most clearly be seen in paragraph [20] of his submissions, where he said:-

However, section 5 of the Act does not speak about a "charged offence" of "violence" but rather a "charged offence" involving "violent conduct". That, it is submitted, includes an offence one of the essential ingredients of which is violence, or something less than an offence of or intrinsically involving violence. As will be seen by a review of the cases below, there is a consistent line of authority supporting the proposition that at least this latter category should include the situation where, to quote the Chief Justice of Tasmania in a case to which reference will be made, "the violence relied upon is so connected to one of the ingredients of the crime that the court would be entitled to take into account when exercising its ordinary sentencing discretion without violating the principle referred to in R v De Simone [sic] (1981) 147 CLR 383.

1. Thirdly, counsel relied upon relevant Dictionary meanings. The Oxford English Dictionary, 2 nd edition, defined "involve" relevantly as: "to enfold, envelop, entangle, include". The Shorter Oxford English Dictionary defined "involved" as: "to include, to contain, imply".

1. The applicant then placed reliance upon a variety of decisions, generally arising in different statutory contexts and in other jurisdictions, to support his argument on the first issue he had identified. Perhaps principal among these was the decision to which I have earlier made reference, namely that of R v McCrossen [1991] TAS R 1. In that case, Green CJ had to decide whether the offender had been "convicted of a crime involving an element of violence", pursuant to subsection 392(1)(a) of the Tasmanian Criminal Code . This section enabled a sentencing judge to declare the offender a dangerous criminal if certain conditions were met, including, under subsection (1)(a), where the person "is convicted of a crime involving an element of violence". The Chief Justice stated:-

I agree with respect with the view expressed by Wright J in R v Gill ... that in order to satisfy the requirements of section 392(1)(a) the "element of violence" involved need not be an essential ingredient of the crime. This section provides that the crime of which the accused is convicted must be a crime "involving" an element of violence. The word "involving" is not equivalent of "one of the essential ingredients which is" and there is no reason not to give the word its ordinary meaning. However, if the element of violence relied upon is not an essential ingredient of the particular form of the crime with which the accused is charged, I think that the crime can only be regarded as "involving an element of violence" if the violence relied upon is so connected with one of the ingredients of the crime that the court would be entitled to take it into account when exercising its ordinary sentencing discretion without violating the principle referred to in R v De Simoni ...that a judge may not take into account aggravating circumstances if the effect of his doing so is that the accused is sentenced for a crime other than that of which he has been convicted.

1. Reference was also made to Breeze v R [1999] QCA 303; 106 A Crim R 441, where the Queensland Court of Appeal considered legislation specifying that a sentence of imprisonment should only be imposed as a last resort, and that a sentence that allows the offender to stay in the community is preferable. This beneficial provision was excluded, however, where the offence "involved the use of... violence against another person". The trial judge had found that it did (a female shop assistant had been threatened by three males with raised screwdrivers or iron bars, and told to open the till). The Court of Appeal refused leave to appeal.

1. Counsel submitted that the cases reviewed (including those that I have specifically mentioned) established that the notion that a person is charged with an offence involving violent conduct is something less than an offence of violence, or an offence in which one of the essential ingredients is violence, even though nobody was physically harmed.

1. The second question identified by the applicant in its written submissions assumed the correctness of the "elements test", but posed the question whether the conduct of the offender could be considered in the circumstances where the wording of the offence provided inadequate guidance as to whether the offence could be considered as violent conduct. Counsel submitted that an offence that has, as an element, the damaging of property, may or not be an offence of violence, depending on the facts of the case. He submitted that there was no reason why crimes involving damage to property should not involve "on occasions, violent conduct". He further submitted that there was no justification in confining the word "violent conduct" to the person. In the present matter, it was argued that the damage caused by kicking in doors and driving two vehicles into the hotel, in what has become known as a "ram raid", plainly involved violent conduct.

Submissions for the respondent

1. Ms Robyn Burgess of counsel appeared for the first respondent. Ms Burgess submitted that the cases of Chandler and Ebsworth authoritatively decided the questions in this matter. Ms Burgess submitted that Chandler and Ebsworth are clear authority that, when considering whether a person is charged with "an offence involving violent conduct" for the purposes of section 5(2)(b) of the Drug Court Act , it is the elements of the offence charged which provides the relevant consideration, and not the surrounding circumstances as disclosed in the facts. In relation to the second question, counsel submitted that damaging property is not an offence involving violent conduct for the purposes of section 5(2)(b) of the Act, and the extent of any damage caused is not relevant to that question. So far as the decision in Ebsworth is concerned, Ms Burgess observed that the applicant now seeks to argue the opposite position to that which it had argued in 2001.

1. Ms Burgess submitted that no basis had been demonstrated for suggesting that the two earlier decisions Chandler and Ebsworth should now be regarded as clearly wrong. Ms Burgess further submitted that the additional cases relied upon by the applicant were simply decisions containing obiter observations, generally in other jurisdictions, and arising in different statutory contexts. It was submitted that they provided little assistance in the present matter.

1. Finally, Ms Burgess submitted that the statutory purpose of the Drug Court Act , and the policy behind it, is clearly set out in section 3. It is beneficial legislation, and the object of the Act is to be achieved by diverting eligible persons to drug offender programs so as to eliminate or reduce their dependency, and consequently reduce their need to resort to criminal activity. Section 5(2)(b) provided mandatory exclusion from the Drug Court and, for that reason, it should be construed strictly, and confined, as the authorities suggest, to the elements of the offence charged. The language of the legislation, and the purposes of the Drug Court Act , supports this construction. The test, which looks at the conduct of the offender rather than the elements of the offence, would, if imposed, result in uncertainty, lengthy hearings and confusion in determining whether the facts, in an individual case, were capable of establishing that an offence involved violent conduct. Ultimately, the burden falls on the prosecution to elect the charge, if it wishes to do so, which appropriately reflects elements of the violence. It also reflects the aggravating circumstance to be included in the indictment. Where the offence elected does not require proof of violent conduct to the person, the Crown should be held to its choice.

Resolution

1. The applicant's first argument, based on Grounds 1 and 2 in the Summons, cannot succeed. It falls at the first hurdle. In my view, the decisions in Chandler and Ebsworth are fairly and squarely against the principal proposition advanced by Mr Arnott.

1. In Chandler , the unsuccessful claimant had been charged with two offences. The first was driving a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning death. The second was driving a motor vehicle in a manner dangerous to another person whereby the vehicle was involved in an impact occasioning grievous bodily harm. The claimant had been driving a stolen motor vehicle on the Hume Highway, and was travelling at an excessive speed and changing lanes aggressively. His vehicle collided with another vehicle, and became airborne. It landed on the roof on an oncoming vehicle, before coming to rest upside down on the highway. The driver of the other vehicle died, and her passenger suffered brain injury. Hence the two charges.

1. The Drug Court had to consider the eligibility of the claimant for the purposes of admission to the Drug Court program. Her Honour Judge Murrell determined that the claimant was ineligible on the basis that each of the offences with which he had been charged was "an offence involving violent conduct".

1. The Court of Appeal was invited to find that her Honour's decision was in error. At [32] - [33], Hodgson CJ in Eq (as he then was) said:-

The sole question argued before us was whether or not Judge Murrell was correct in her determination as to s5(2)(b). There was no dispute that, if we think her Honour was wrong on this point, we should grant relief substantially as sought: cf Craig v South Australia (1995) 184 CLR 163; Waterhouse v Gilmour (1988) 12 NSWLR 270 at 276; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418.

The question before us involves consideration of two matters. First, does the application of s5(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 secondly, what is the nature of the violent conduct referred to, and is intent or recklessness as to violence required?

His Honour then continued:-

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 (Parliamentary Debates, Legislative Assembly, 27 th October 1998 at 9030), which included the following statement (at 9031):

"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 s5(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.

1. In relation to the second issue before the court, Hodgson CJ in Eq concluded that the section 52A offences with which the claimant had been charged, were in fact offences involving violent conduct, within section 5(2)(b) of the Drug Court Act . In the course of that discussion, his Honour accepted that, as the Drug Court Act 1998 had, as one of its objects, the provision of benefits to offenders, it should be construed quite strictly. This was so because it removed the benefit which would otherwise accrue to an offender.

1. Stein JA stated that he had the benefit of reading the draft judgment of Hodgson CJ in Eq, and agreed with it and the orders he had proposed. Stein JA agreed that offences against section 52A of the Crimes Act were offences involving "violent conduct".

1. The third member of the court was Powell JA. His Honour did not agree that the elements of the offence with which the claimant had been charged included violent conduct. In that circumstance, Powell JA indicated that he would have found error in Judge Murrell's conclusion. On the first issue, however, it is clear from a reading of Powell JA's decision that he agreed with Hodgson CJ in Eq that the proper construction of section 5(2)(b) required that it is the elements of the offence charged, rather than the actual conduct, which is the determining factor in relation to eligibility.

1. In DPP v Ebsworth , the offender had been charged with robbery of a wine shop "whilst armed with an offensive weapon, to wit, a baseball bat". The Drug Court had held, on the basis that the offender had not used the baseball bat in the robbery other than by way of threat, that, for this reason, his behaviour did not render him "ineligible" within the meaning of section 5(2)(b).

1. The claimant sought a declaration that his Honour Acting Judge Barnett had erred in finding that the offence charged under 97(1) of the Crimes Act against the offender was not an offence involving violent conduct within section 5(2)(b) of the Drug Court Act .

1. Meagher JA at [15] - [20] said:-

15. The issue before his Honour and on appeal is whether the offence under s97(1) of the Crimes Act that the first opponent has been charged with, constitutes an offence involving violent conduct as provided in s5(2)(b). "Violent conduct" is not defined in the Act, nor is the word, "violent".

16. In determining whether it was or was not, his Honour considered one must look at the facts of each particular case. His Honour set out his findings in relation to the conduct of the first opponent as follows:

"Now there is no suggestion anywhere that the applicant actually used the baseball bat. The victim Matthew Fowler said in para 9: 'the first guy who was carrying the baseball bat held it in his right hand at about chest level, I was worried that he was going to use the bat. I felt threatened by this.' So that conduct certainly makes the matter a serious matter falling within s97, of course. It is a threat."

17. His Honour concluded, on the basis of other cases decided in the Drug Court in relation to threats, that such behaviour does not render a person ineligible within the meaning of s5(2)(b); see R v Sloane [1999] NSWDRGC 3.

18. The claimant submitted that the correct test to determine whether the offence should be described as one involving violent conduct was not that undertaken by his Honour below of looking at the actual facts, but rather that involved in this Court in Chandler v DPP (2000) 113 A Crim R 196, where the learned Chief Judge in Equity with whom Mr Justice Stein agreed, stated:

"The use of the word, 'charged', in s5(2) suggests very strongly that it is the elements of the charge which are significant, not the particular conduct. That view was expressed in the earlier decision of Judge Murrell in R v Ranse (1999) NSWDRGC 2; and I agree with that decision."

19. I agree with that construction of the section. In my view, this Court should follow what was said in Chandler in this connection.

20. In the present case, if one looks at the charge, it is implicit as I have said from the verb, to rob, and the accusation of an offensive weapon, that violence was necessarily involved. Those two elements together constitute violent conduct.

1. Accordingly, Meagher JA was of the view that the charge of armed robbery armed with an offensive weapon, in reference to the elements of the charge, constituted behaviour involving violent conduct.

1. Mason P said:-

1. If one confines oneself to the criminal pleading as distinct from the facts the Crown expects to prove in this case, this was in my view "an offence involving violent conduct", with the consequence that the person charged was not an eligible person within s5 of the Drug Court Act 1998. That is because a necessary element of the offence of the robbery charged will be proof of the use or threat of violence.

2. The judgment below turns upon a distinction between the use of violence and the threat of violence as the means of putting the victim in fear. In my view that is a distinction without difference in the present context. In either case, "violent conduct" is involved in the offence charged (see Chandler v DPP (2000) 49 NSWLR 1 at 4, per Powell JA.) The Act does not refer to violent conduct giving rise to physical injury.

3. s5(2)(b) of the Drug Court Act, states that a person is not an eligible person if the person is charged with "an offence involving violent conduct or sexual assault". Language of such generality does not, in my view, support the distinction urged upon us by counsel for Mr Ebsworth in her able submissions, namely a distinction between an assault based on a threat of violence and a battery, however slight.

4. For those reasons, I am of the view that it was not open in law for Barnett ADCJ to be satisfied that the first opponent was an eligible person.

5. I agree with the reasons of Meagher JA and with the orders that he proposes.

1. Sheller JA agreed with the other members of the court.

1. These decisions emphatically require the rejection of the arguments based on Grounds 1 and 2 in the Summons. This court will not lightly depart from its previous decisions and will do so only when compelled to the conclusion that the earlier decision was wrong: Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [273] and following; Tzaidas (BHT Tzaidas) v Child & Ors [2004] NSWCA 252; 61 NSWLR 18 at [29] - [35] per Giles JA; Fobco Pty Ltd v Harvey (1996) 40 NSWLR 454 at 462 per Beazley JA; Nguyen v Nguyen (1990) 169 CLR 245 at 269 per Dawson, Toohey and McHugh JJ. Mr Arnott did not seek leave to query the correctness of the earlier decisions. Rather he endeavoured to side-step their effect by posing the first question in the way he did. This, it will be recalled, was the suggestion that, when the Drug Court comes to sentence an offender, it may, in some way, revisit its earlier finding if it finds that the circumstances of the offence include conduct that could be described as violent. Alternatively, in his oral submissions, Mr Arnott suggested that the Drug Court might, in anticipation of sentence, examine the facts sheet or Agreed Statement of Facts (if there were one) and draw on these facts on the eligibility question.

1. As I have said, Chandler and Ebsworth really supply the answer to this submission. However, in deference to Mr Arnott's argument, it should be noted that the general context of the relevant statutory provisions concerning eligibility do not support the argument in any event.

1. In my opinion, Mr Arnott's argument does not sufficiently take account of the sequence of steps that are required to be taken under the legislation. First, the judge before whom the offender is charged is to ascertain whether "the person appears to be an eligible person" (section 6(2)(a)) and, if so, to ascertain "whether the person is willing to be referred to the drug court to be dealt with for the offence" (section 6(2)(b)). In the present case, the judge who made those decisions and referred the matter to the Drug Court (section 6(2)(c)) was Judge Murrell. The test is an undemanding one and there has been no challenge raised as to her Honour's determination which occurred at Campbelltown Court on 31 st March 2010.

1. The second step required under the legislation arises from the terms of section 7A. Where a person, having been referred under section 6, comes before the Drug Court, it is the duty of the Drug Court to address the questions raised under section 7A(2). The court cannot proceed to sentence before those issues have been addressed. The court must be satisfied as to each of the matters stipulated in the section before deciding whether it will "deal with the offender in relation to the offence under the section".

It is important to note however, that s7A gives the court a discretion as to whether it will include a person in the drug program. Section 7A(2) states:-

(2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters (emphasis added):

(a) that the person is an eligible person,

(b) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence,

(c) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act,

(d) 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,

(e) 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,

(f) 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,

(g) that any person (an affected person ) with whom it is likely the person would reside during the period of the person's participation in a program under this Act has consented in writing to the person residing with the affected person during that period.

Section 7A(10) is also important in this regard. It is in these terms:

(10) 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.

1. The third step demanded by the legislation arises when, and only when, the court is satisfied as to the section 7A(2) matters. It may then, in its discretion, "deal with the person" in relation to the offence. If it determines to do so, it must convict and sentence the person in accordance with the Crimes (Sentencing Procedure) Act 1999 . The court is then obliged, as part of the statutory sequence, to make an order imposing the conditions that the person has accepted under section 7A(2)(e), and is further obliged to make an order suspending execution of the sentence for the duration of the person's drug program. As a practical matter, although not a specific requirement of the statute, it is often the case that a potential candidate for the program will have undergone a detoxification process before admittance. A program is then drawn up for the benefit of the particular offender that is recognised in the conditions imposed by the court.

1. It should be noted that where a person has failed to satisfy the Drug Court of the conditions in section 7A, including eligibility, the Drug Court may nevertheless sentence the person if it is satisfied of the matters in section 7D(2). One of those matters is the consent of the person to be dealt with by the Drug Court. If an eligible offender does not consent to the Drug Court dealing with the matter under this section, (or in such other circumstances as the Drug Court may determine), the Drug Court is required to remit the offender back to the referring court.

1. The fourth stage of the sequence involves the making of orders imposing either rewards or sanctions as the person makes, or does not make, his or her way through the program that has been established by the court (section 16(1) and (2)).

1. The final sequence is the termination of the program, either in accordance with section 10 or section 11. In the former case, for example, the program may be terminated where the Drug Court is satisfied, on the balance of probabilities, that the offender is unlikely to make any further progress in the program, or that his or her further participation in the program poses an unacceptable risk to the community that the person may re-offend. By way of contrast, a section 11 termination occurs where the Drug Court is satisfied, on the balance of probabilities, that the drug offender has substantially complied with the program. Upon termination, the Drug Court undertakes the final step required under the legislation, namely a reconsideration of the drug offender's initial sentence. Once a person has been admitted to the program ("dealt with under section 7A"), he remains within it until termination and the imposition of final sentence.

1. This sequence presents itself as a rational process from referral/eligibility findings though to termination and final sentence. Once a person has been placed in the program, it would not be expected ordinarily that the program would be interrupted because of the need to revisit ineligibility. This lends support to the proposition that eligibility was not intended to be facts-based.

1. There is every reason to suppose that the legislature had in mind that a constant and certain test would be set for eligibility. The elements of the offence test meet that criterion. The facts test would be far less certain. It would have the capacity to interrupt the sequential nature of the Drug Court program and, to that extent, disturb the beneficial flow of treatment and counselling for addiction. The legislature does not appear to have had in contemplation, in the normal case, a revisiting of eligibility at the sentencing or later stages, enabling a reversal of the original finding, based on some circumstance of behaviour not necessary for the establishment of the elements of the offence.

1. Of course, as I have noted, the court does have a discretion as to whether it will deal with a person for an offence in the manner required by section 7A. The ambit or context of the discretion is not stated expressly or otherwise in section 7A(10), or elsewhere in the Act. I shall return to this point later.

The offence under section 112(2) of the Crimes Act 1900

1. There is no doubt that the principal offence charged against the first respondent did not allege or require proof beyond reasonable doubt of violent conduct against any person as an element of the offence.

1. I have earlier mentioned that the first respondent was charged with an offence of aggravated break and enter, and commit serious indictable offence, namely damage to property. The circumstance of aggravation was that he was in the company of four other offenders.

1. The elements of the offence under section 112(2) were:-

(1) That the first respondent broke and entered the hotel at Leppington;

(2) He committed a serious indictable offence therein.

1. A "serious indictable offence" is defined in section 4 of the Crimes Act 1900 as "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more". Section 195 of the Crimes Act 1900 appears in Subdivision 2 of Part 4, which relates to crimes against property generally. Section 195 provides:-

(1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable:

(a) to imprisonment for 5 years.

The elements of this offence are as stated in the section. They do not include any element requiring proof of violent conduct towards a person.

1. Section 112 of the Crimes Act 1900 appears in Subdivision 4, which deals (inter alia) with housebreaking. Circumstances of aggravation are defined in section 105A(1) as follows:

circumstances of aggravation means circumstances involving any one or more of the following:

(a) the alleged offender is armed with an offensive weapon, or instrument,

(b) the alleged offender is in the company of another person or persons,

(c) the alleged offender uses corporal violence on any person,

(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,

(e) the alleged offender deprives any person of his or her liberty,

(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

1. As I have said, in the present matter, the first respondent was charged with a circumstance of aggravation, namely being in the company of other persons. It can be seen from this analysis that the principal charge against the first respondent, as pleaded, was made up of essential elements, none of which required proof of violent conduct towards a person. It was essentially for this reason that the primary judge considered that the first respondent was not excluded from eligibility. As his Honour said, the test is not whether he could have been charged with an offence involving violent conduct, but whether the offence with which the offender was charged was an offence involving violent conduct.

1. Mr Arnott argued (as Ms Broomfield had done before the primary judge) that a number of the aggravating circumstances provided for in section 105A of the Crimes Act were available to be proved against the first respondent at the time he came to be sentenced, notwithstanding that they were not pleaded in the indictment. For example, when the first respondent and his co-offenders gained entry to the premises by "busting" a roller door open, he had been carrying a stick about 50 centimetres long and an inch thick. He had been told to take the stick in the event that the cleaner, who was working in the hotel, tried to retaliate. The cleaner was confronted by all the men and told to get down on his knees. Later the cleaner was put in the staff room and told to stay there while the offenders engaged in what was effectively a "ram-raid" operation, in an endeavour to dislodge and move the automatic teller machine in the hotel. Not surprisingly, the cleaner, although not physically harmed, was deeply disturbed by the events of 3 rd June 2009.

1. Mr Arnott's point was that any of the additional aggravating circumstances (beyond the circumstance pleaded), subject to proof beyond reasonable doubt, could be relied on by the Crown for the purpose of the sentencing exercise. In Regina v Kenny Li (Unreported, New South Wales Court of Criminal Appeal, 9 th July 1997, Abadee and Studdert JJ) a two-person bench had held that Howie DCJ (as he then was) had been entitled to take into account circumstances of aggravation beyond those raised in the indictment, provided they did not "warrant a conviction for a more serious offence" (this was a reference to the De Simoni principle). This decision has been followed and approved by the Court of Criminal Appeal in a number of cases since: Marshall v R [2007] NSWCCA 24 at [10]; R v AD [2005] NSWCCA 208 at [22].

1. Mr Arnott argued that, as a consequence, the Drug Court was entitled to have regard to the Agreed Statement of Facts, and to ascertain whether circumstances of aggravation that might be sustained (beyond that pleaded in the indictment) revealed violent conduct to the person. If so, counsel argued, the Drug Court should have found the first respondent ineligible.

1. In my opinion, the primary judge was entitled to reject this argument in the manner he did. Strictly speaking, on the issue of eligibility, the matter had to be determined on the basis of the "offence charged" in the indictment. Chandler and Ebsworth required the Drug Court to examine the elements of the offence charged against Mr Hilzinger. If there were no element of violent conduct in that charge as pleaded, he was entitled to be found to be an eligible person. As the primary judge stated, the test provided is to ascertain whether an offender has been charged with an offence involving violent conduct. The test is not whether he could have been charged with an offence involving violent conduct. Nor, might I add, is the test one that requires the Drug Court to determine, when it comes to the imposition of sentence, whether there may have been some violent conduct involved in the facts relating to the commission of the offence. The prosecution had made an election to lay a particular charge alleging one circumstance of aggravation, which did not involve violent conduct. It was to that charge that the first respondent pleaded guilty. It was open to the prosecution to choose an alternate aggravating circumstance if it had wished to do so. Eligibility fell to be determined by a careful consideration of the actual charge laid against the first respondent, and not one that might have been brought against him.

1. I have earlier stated that the Drug Court had a discretion as to whether it should admit an eligible person to the drug program. This discretion was described by the Minister in the Second Reading Speech as "an unfettered discretion whether to accept persons into the program" (NSW Parliamentary Debates, 27 October 1998, p 9032). The language of section 7A, and in particular, section 7A(10), confirms the existence of this discretion, and that no appeal lies against a decision not to accept a person who might otherwise be eligible.

1. As to whether the discretion is properly described as "unfettered", I would, for myself, prefer to say that the language of section 7A (including subsection 10), confers a discretion whose ambit is to be inferred from the scope and purpose of the legislation ( Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504 - 505; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [59] per French J). It is, of course, a discretion that must be exercised in good faith. It could not, however, be suggested that a person who is ineligible could nonetheless be admitted to the Drug Court program. The discretion is plainly not unfettered in that sense. The objects of the legislation are clearly set out in section 3. The means by which those laudable objects are to be achieved include the suspension of a custodial sentence, otherwise appropriate as punishment, during the currency of a program designed to eliminate an offender's dependency on drugs, thereby eliminating that person's need to resort to criminal activity to support the dependency. Thus, the elimination of drug dependency, and the restoration of a person to his or her function as a law-abiding citizen, in the case of non-violent offences, is intended to trump the imposition and execution of an otherwise appropriate custodial sentence. Upon completion of a successful program, a participant may not be required to undergo custody at all.

1. With these observations in mind, it will be apparent that it would be open to the Drug Court, notwithstanding that an offender is eligible for admission to its program, to decline to so accept the offender because of the seriousness of the offence, or because of the presence of violent conduct of an extreme kind, not otherwise inherent in the elements of the offence charged. Such an exercise of discretion, based on that consideration alone, it might be thought, is likely to be a rare occurrence. This particular consideration - the seriousness of the offence - would obviously need to be considered alongside a range of other circumstances, including those that are both benevolent and beneficial to the offender. But the discretion is certainly there, and available in those rare situations where the need for strict punishment in accordance with the application of proper sentencing principles, of itself, outweighed the desirability of suspending punishment, so as to divert an offender into a program to reduce or eliminate drug dependency.

1. I hasten to add that the exercise of such a discretion was not urged upon the primary judge in the present matter. Nor did the primary judge entertain, admit or exclude the existence of such a discretion in his decision. His determination was concerned with the strict question of eligibility. It could not be said that any error of law appears on the face of his reasons in relation to the existence or exercise of a residual discretion as to whether to admit the first respondent to the program. In any event, there were plainly ample reasons why the first respondent should have been admitted to the Drug Court program. While it is true that the offence charged had, in the enumeration of its circumstances, some very serious overtones, it was also the fact that the Crown accepted that it could not be demonstrated that he had any involvement in the kidnapping of the cleaner. In the Agreed Statement of Facts, he was seen to be on the fringe of the joint criminal enterprise that eventuated, to take the ATM from the Leppington Hotel. The first respondent had never been to the location before, he was prevailed upon by others, shortly before the offence, to act as a look-out and then, in the end, joined the others when the premises were broken into. When he was apprehended by police, he immediately participated in an electronically recorded interview, during which he made admissions as to his involvement in the offence. He pleaded guilty at the first opportunity and, as the primary judge noted, unusually, he had no criminal antecedents whatsoever. He was clearly a suitable person to be included in a program. The factors I have mentioned, bearing in mind the objects of the legislation, more than outweighed, in the offender's case, the serious nature of, and the extensive damage caused by, the ram-raid crime.

1. The final argument advanced by Mr Arnott in relation to the first two grounds of appeal was based upon his analysis of a number of authorities dealing with the word "involving". It will be recalled that counsel's argument was that too little attention had been paid to this word. There were authorities (admittedly dealing with different statutory contexts) where a distinction had been drawn between "an offence of violence" and "an offence involving violence". In my opinion, however, this argument could not succeed because, once again, the basis of the argument had been effectively rebutted in Chandler and Ebsworth . As I indicated earlier, the Court of Appeal had placed particular reliance on the use of the word "charged" in section 5(2), finding that it is the elements of the charge that are significant, not the particular conduct. For present purposes, it might be said that the cases dealing with different statutory contexts, where the phrase "offences involving violent conduct" is used, are by no means to be equated with the precise language of section 5(2) and the general context of the Drug Court Act . The language of the section requires the Drug Court to examine whether the offender has been charged with an offence involving violent conduct (or sexual assault), a context rather different from that mentioned in the authorities referred to in the written submissions.

1. The distinction can be readily seen when regard is had to the case of McCrossen, sought to be relied on by Mr Arnott. In that case, the accused had pleaded guilty to attempting to commit the crime of threatening to murder, contrary to provisions in the Criminal Code . At the sentencing hearing, the Crown asked the court to declare the offender a dangerous criminal. Section 392 of the Criminal Code allowed the court to make such a declaration where a person "is convicted of a crime involving an element of violence". The declaration is made where the sentencing court is of the opinion "that such a declaration is warranted for the protection of the public". It can be easily seen that, in the context of this particular provision of the Criminal Code , it would be necessary for the court to examine all of the circumstances involved in the crime, so as to reach a conclusion that a declaration would be warranted. Green CJ applied the meaning which the common law gave to the word "violence" and held that, for the purposes of section 392(1)(a) of the Criminal Code , the making of a threat to kill, with the intention of intimidating someone, was capable of constituting a crime involving an element of violence.

1. Reference may be made to two further decisions mentioned by Mr Arnott in his submissions. In Breeze , the Queensland Court of Appeal, as I have said earlier, refused leave to appeal to the offender. He had sought leave to appeal from the imposition of a custodial sentence for robbery in company whilst armed. In the course of the robbery, violence had been threatened against the victim, without physical force being applied. The applicant's complaint was that the sentencing judge had relied partly on section 9(3)(a) of the Penalties and Sentences Act 1992 (Qld) which, in effect, when violence was involved, disentitled the offender to a benefit, such as imprisonment being imposed "only as a last resort". The particular legislation excluded this beneficial aspect of sentencing in the following terms (section 9(3)) at [13]:-

However, the principles mentioned in subs(2)(a) do not apply to the sentencing of an offender for any offence -

(a) that involved the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person; or

(b) that resulted in physical harm to another person.

1. In Breeze , the Court of Appeal (Pincus and Davies JJA, Demack J at [18]), applied the remarks of Green CJ in McCrossen , where the Chief Justice had said at [6]:-

Applying the meaning which the common law has given to the word 'violence' I hold that for the purposes of the [relevant provision] the making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence.

1. The court also placed reliance upon the second of the cases referred to by Mr Arnott on this point. This was the decision of the Victorian Court of Criminal Appeal in R v Butcher [1986] VR 43; (1985) 16 A Crim R 1, in which the question was whether a Victorian provision relating to sentencing, and including the expression "a crime the necessary elements of which include violence" applied. Butcher had killed a man in the course of a robbery, but it appeared that the Crown could not prove that this had been done deliberately. Butcher had, however, threatened the man with a knife. The question was whether robbery, under Victorian law, was a crime "the necessary elements of which include violence", and the court held that it was. It did so on the ground that robbery, although it may be effected by a threat, was at common law always regarded as a crime of violence. The decision of the Queensland Court of Appeal contained the following observation (at 446):-

The decision (of Butcher ) is capable of being distinguished, on the ground that the question here is not what are necessary elements of the offence of robbery, but rather whether what was actually done involved the use of violence against the person.

1. In my opinion neither of these cases support the arguments advanced by Mr Arnott. Each of these cases was concerned with a very different statutory context. The Queensland legislation, as Ms Burgess argued, is significantly broader than section 5(2)(b) of the Drug Court Act . It required that the issue be considered in the context of the sentencing of an offender when all the relevant facts were in evidence. The determination as to whether the offender had committed an offence that involved the use of violence or resulted in physical harm necessarily required an examination of the facts of the case and could not be confined to the elements of the offence.

1. Mr Arnott has gone with considerable diligence to a number of other authorities in his examination of the use of the word "involving" in a criminal context concerning violence. However, with all due respect, none of the cases on which he has placed reliance have the same statutory context as section 5(2)(b) of the Drug Court Act . None of the authorities cast any doubt on the correctness of the decisions of this court in Chandler and Ebsworth nor do they raise any additional matter warranting attention.

Damage to property

1. I turn to examine the issues raised in Ground 3 of the Summons. This is the question as to whether, on the issue of eligibility, the expression "violent conduct" should be restricted to violence to the person. Mr Arnott argued that there is no reason why crimes involving damage to property should not involve violent conduct, and hence, restrict eligibility. In the present case, counsel argued, the damage to property was extensive being, it will be recalled, in excess of $63,000.

1. In my view, however, despite the generality of the language employed in section 5(2)(b), it should not be given the wider meaning contended for by Mr Arnott.

1. It must, of course, be conceded that the language itself is in very general terms ("an offence involving violent conduct"). The phrase, in itself, gives no guidance as to whether any restriction should be employed. There are a number of other considerations, however, which lead to the conclusion I have reached.

1. Firstly, when the phrase is seen in the broader context of the legislation as a whole, considerable insight is gained as to its likely meaning. The legislature has plainly sought to confer the concept of eligibility on a reasonably limited class of offenders. It has done so, however, in order to further the objects of the Drug Court Act . I have earlier set out those objects, and the means by which they are to be achieved. The reduction of drug dependency, and drug-dependent crime in particular, is at the core of the legislation. The interests of the community, and particularly its interest in protection from criminal activity, illuminate the need for reintegration and rehabilitation of drug-dependent offenders. This is achieved through programs which, if successful, will reduce the need for such persons to resort to criminal activity.

1. Secondly, the Act recognises throughout that a balance should be struck. On the one hand, there are the well-recognised objectives of criminal punishment - protection of society, deterrence (both general and personal), accountability, denunciation, retribution and reform. On the other hand, there is the need to subordinate, or at least postpone for a time, those objects in favour of eliminating drug dependency and achieving rehabilitation through means other than immediate confinement to custodial situations. At a practical level, there is a recognition that detoxification programs can, in some instances, with appropriate counselling and treatment, end a drug addiction and successfully counter the factors which have led to that addiction.

1. Thirdly, once appropriate recognition is given to these objects, it is appropriate to give recognition to the fact that the legislation is remedial. It is beneficial, both to the individual and to the public. It is necessary and proper that, in those circumstances, the legislation be construed beneficially ( Bull v Attorney-General (NSW) (1913) 17 CLR 370 at 384; Khoury v Government Insurance Office of (NSW) (1984) 165 CLR 622 at 638 ; Waugh v Kippen (1986) 156 CLR at 164; see also the recent decision of R v Harris [2011] NSWCCA 105 per Simpson J (Davies J and Grove AJ agreeing) at [118]).

1. Fourthly, it is not inappropriate to have regard to the range and nature of matters that are commonly dealt with in the Drug Court. Not surprisingly, the majority of offences dealt with in the Drug Court, since its inception in February 1999, have been "theft" charges, including break-and-enter. In addition, property damage has featured regularly, although not to the same extent as the other offences I have mentioned (see NSW Bureau of Crime Statistics and Research - Crime and Justice Bulletins Nos 52 p8 and 88 p6). This pattern has manifested itself, it seems, each year since the Drug Court began its work. The consequence of Mr Arnott's argument, if it were accepted, is that a large number of persons, perhaps the majority, who have successfully made their way through the Drug Court program would have been ineligible for diversion and treatment. Although not conclusive in itself, this suggests that the inclusion of damage to property as a disqualifying factor would scarcely be a beneficial construction of the legislation, and would indeed run counter to its beneficial objects.

1. Fifthly, the issue as to whether the phrase "offence involving violent conduct" is to be confined to violence towards a person, was considered by the Drug Court itself as long ago as 2001. In R v Cook [2001] NSWDRGC 9, the then senior judge determined that the phrase should be limited to violence to a person. As I understand it, the Drug Court has, both prior to the decision and since it, followed that position in relation to the interpretation of the statute. It is to be presumed that Parliament has been aware of this approach for more than ten years, and there has been no suggestion that the legislation should be altered or clarified to a contrary effect.

1. Sixthly, there is the reasoning advanced by the primary judge in the present matter. His Honour made a concise but valuable analysis of the situation. Very considerable damage can sometimes be occasioned to premises during a break-in. The example given by his Honour was the illustration of very expensive shopfront windows, or other external property being broken or smashed, or where extensive vandalism occurred during the course of a break-in. Sometimes, the same amount of violence may occasion very expensive damage in one situation, but very little in another. The third example his Honour gave is the situation where damage may be occasioned with no element of violence at all. In the present matter, the primary judge concluded that the fact that very significant material damage had been done to the premises did not of itself elevate the offence to one that demanded ineligibility. In other words, it was his Honour's view (correctly, in my opinion) that section 5(2)(b) is not to be construed, on the issue of eligibility, by some type of comparative analysis of the damage to property. Such a construction is not warranted by the language used and would, if it were adopted, simply become unworkable.

1. This conclusion is, however, both illuminated and tempered by the final matter that is relevant to the determination of the present issue. This is the important issue of the discretion to decline admission to the program, notwithstanding that an offender is otherwise eligible. The availability of this discretion is, in my view, an important factor in reaching the conclusion that the construction urged by Mr Arnott should not be accepted. Indeed, it might be observed that in the decision of her Honour Judge Murrell mentioned earlier ( R v Cook ), her Honour, in the exercise of her discretion, refused to admit Mr Cook to the program, notwithstanding his eligibility. In that case, her Honour held that there was a significant ongoing risk of violence towards members of the community, based on the offender's antecedents and other matters. For that reason, she exercised her discretion against the offender and found that it would be inappropriate to place him on a Drug Court program. It is clear that the Drug Court has, for many years, recognised the existence of this discretion, and its importance in the process, notwithstanding a finding of eligibility.

1. There were two further matters urged by Mr Arnott. The first was a reference to the decision in Antonelli v Secretary of State for Trade and Industry [1998] QB 948. In that case, the Court of Appeal had to determine whether the appellant's conviction for arson in the United States was "an offence involving violent conduct" within the meaning of the Estate Agents Act 1979 . If it answered that description, it would have resulted in the appellant's disqualification from doing estate agency work in the United Kingdom. Lord Justice Beldam, in delivering the judgment of the Court of Appeal, found no justification for confining the word "violent" to violence to the person.

1. I do not find this decision to be of any assistance in relation to the interpretation to be given to the relevant phrase that appears in section 5(2) of the Drug Court Act . The decision must be read in its statutory context, and in the light of the policy behind the particular legislation. Beldam LJ noted in that case that the policy behind the legislation was the need to countenance disqualification of a person where that was required for the protection of the public. The wider meaning given to the phrase was required by the context, a context which is rather different from that involved in the legislation under consideration in this matter.

1. The final issue raised by Mr Arnott related to the second question he posed at the outset of his submissions. Should the Drug Court take into account the conduct of the offender in relation to an offence where the wording provides inadequate guidance as to whether the offence could be considered violent conduct? In my view, this question simply does not arise on the face of the reasons in the present matter. As I have indicated earlier, the offence with which the first respondent was charged did not require the proof of any element involving violence towards a person.

1. For all these reasons, I consider that the primary judge was not bound to take into consideration the damage to property alleged in the offence, pursuant to section 112(2) of the Crimes Act 1900 on the issue of eligibility. His Honour would have been entitled to consider that as a relevant matter on the overall issue of the discretion entrusted to him by the legislation, in determining whether to admit the first respondent to the program. No submission, however, was made to his Honour in that regard. Indeed, the Crown made no submission at all on the damage to property point. The third ground in support of the summons must fail.

1. The applicant has failed to demonstrate error on the face of the reasons. No jurisdictional or other error has been established. In those circumstances, I propose the following order:-

(1) Summons is dismissed.

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Amendments

15 June 2012 - Citation "Maxwell v R [2007] NSWCCA 304" deleted.

Amended paragraphs: Citations on cover sheet and 61.