R v Ahmad

Court of Appeal (NSW)|2001-07-09

CITATION : R v Ahmad [2001] NSWDRGC 7 Regina PARTIES : -v- AHMAD, Khodar FILE NUMBER(S) : 0109 of 2001 CORAM: His Honour Judge Neil Milson CATCHWORDS: :- Drug Court Act 1998 (NSW) - Eligible person - "charged with an offence involving violent conduct" - whether s5(2)(b) applies to offences not referred to the Court LEGISLATION CITED: Bull v Attorney General (NSW) (1913) 17 CLR 356; R v Ranse [1999] NSWDRGC 2; CASES CITED: R v Sloane [1999] NSWDRGC 3; Chandler v DPP [2001] NSWCA 125; (2000) 113 A Crim R 196; R v Brown [2001] NSWDRGC 6 DATES OF HEARING: 09/07/2001 DATE OF JUDGMENT: 9 July 2001

The applicant before the Court seeks entry to the Drug Court. There are three charges before the Drug Court, each relating to offences on 23 April of this year when he was apprehended and charged with breaking, entering and stealing, possession of housebreaking implements and goods in custody.

I am informed that on 19 March he had been charged with an offence of assault occasioning actual bodily harm under s59 of the Crimes Act 1900. He has apparently been convicted in his absence after having failed to appear at the Local Court on 15 May, and is awaiting sentence or other action in respect of that offence. There is an argument that the existence of that charge renders him ineligible to enter a Drug Court program.

By provisions of s7 (2) of the Drug Court Act 1998, the Court can only sentence a person and have them enter a Drug Court programme if satisfied that the person is an eligible person. Section 5 defines an eligible person, in the following terms:

(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 Division 3 of Part 2 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. 4. The question is whether the fact that he is charged with the offence under s59 of the Crimes Act renders him ineligible to be considered under this legislation. I have received and considered written submissions and oral addresses to those submissions from prosecution and defence, and have read the transcript of the arguments made before an unreported decision of His Honour Judge Barnett in the Drug Court on 18 April 2001 in the matter of Regina v James Loughnan.

The definition of an offence involving violence conduct has been canvassed in a number of the decisions of this Court, most recently in the matter of R v Brown [2001] NSWDRGC 6.

It is not a matter of dispute that the offence of assault occasioning actual bodily harm is an offence that falls under s5 (2) (b), nor that Mr Ahmad has been charged with that offence. The Arguments

The prosecution's argument, presented with the support of His Honour Judge Barnett's decision in the matter of Loughnan (supra) are that the fact that a person is charged with an offence that involves violent conduct that remains in some way active before another Court, renders the person ineligible. Support for that argument is provided to some extent in the second reading speech to the Drug Court bill in the Legislative Assembly on 27 October 1998 which has been so often quoted in this Court: "The Drug Court programme 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 submission is that despite the reference to the word "commit" in the second reading speech, the legislation expressly and repeatedly uses the word "charged". In the context of a second reading speech before Parliament, to ascribe the word "commit" its legal or restrictive meaning is inappropriate, that is to say the fact that a person would only be ineligible if it has been proved that they have committed the offence is not consistent with that speech. To use the word "charge" logically reflects the protective function of the Court, given that it provides for the release to the community of offenders who would otherwise be serving moderate to lengthy sentences of full time imprisonment.

Another argument that finds reference in both submissions and has frequently been referred to in the Court is the fact that this is beneficial legislation, and in a number of decisions it has been the Court's view that it ought to be construed generously, or that restrictive provisions ought to be strictly construed. Recently the Court has been referred to of the decision in Bull v the Attorney General for N.S.W (1913) 17 CLR 356 at 384, where it is explained that the correct way of reading this legislation is "not that the true signification of the provisions should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow".

In a matter of Chandler v DPP [2000] NSWCA 125; (2000) 113 A Crim R 196, Hodgson CJ in Equity said that he "did not think that the consideration of beneficial legislation had any significant bearing on the construction of s5(2)(b), although plainly it would be of relevance in the exercise of the Court's discretion s7". That is inconsistent with beneficial reading of legislation exercised by Her Honour Senior Drug Court Judge Murrell S.C. in the matters of R v Ranse [1999] NSWDRGC 2 and R v Sloane [1999] NSWDRGC 3, when her decisions involved s5(2) of the Drug Court Act.

These matters were considered by Judge Barnett in the matter of Loughnan. It does appear that in that matter his Honour may have misunderstood one element of the legislation when he said towards the foot of page 3, "The second issue is the prosecution take comfort in s10(2) where immediately someone who is already on a programme is charged with one of those offences mentioned in ss5(2)(a), (b) or (c), then the program is terminated." That is a misstatement of the law and of the practice of the Drug Court.

The essence of the defence submission is that the proper reading of s5 is that s5(1) is at all stages referring to, and only to, the offence before the Court. Section 5 (1)(a) incorporates s5(2) in its terms by saying that a person is charged with an offence, "other than an offence referred to in subsection (2)". That is to say the reason the words "an offence" is used throughout s5(2) is because it refers back to the introductory s5(1)(a) which uses "an offence". Section 5(1)(b) and 5(1)(c) refers to "the offence". This is a standard mechanism in statutory drafting to introduce a particular item by using the indefinite article "an", eg, "an offence" and then subsequently refer to that item with a definite article, "the offence", to ensure that it is understood that it is the same item being discussed throughout the list. Reasons and Decision

There are a number of reasons why in my mind it would be unfair and inappropriate that the mere fact that a person is charged with an offence under s5(2) which is not before the Drug Court ought to disqualify them from entry to the Drug Court. The principal one is the fact that the person might very well not be guilty of the offence. It would be wrong in principal if the eligibility criteria could be used to disqualify people just because they have chosen to exercise that very basic right to plead not guilty and defend something of which they are innocent, and it would be equally wrong if the structure of the legislation were to serve to encourage innocent people, knowing that they are innocent, to plead guilty solely so they can gain entry into the Drug Court program.

That factor does not in any way change those fundamentals behind the Drug Court legislation which are that it be both therapeutic to the offender, and protective of the community. The Court has a quite unfettered discretion in s7. It is confined by s7(2) to look at people's antecedents, and decide if they render it appropriate the person enter a Drug Court program, but the Court still retains a complete discretion to sentence a person or not. Any discretion has to be exercised judicially, but it would be quite appropriate to consider whether the existence of another offence to which an offender has pleaded not guilty would impede the person's ability to complete a Drug Court program. Thus, for example, were the charge one of grave seriousness where bail is likely to be refused, then the Court could quite properly say the person ought not to enter a Drug Court program because they could not attend to the requirements of the program, and it would be appropriate for the Court not to say we will put the offender on hold until the long process of the law take place, but rather say that as now the person cannot enter the program, and exercise a discretion against their entry.

It would equally be the case that the circumstances of that offence would in due course form part of the antecedents of the offender, and the Court could have regard to the person's antecedents in deciding if it would be appropriate for the person to enter a Drug Court program.

It would be no less appropriate to have the fact that a person has been charged with such an offence excluded from all considerations, than to have a person excluded from all consideration if they had ever been charged with such an offence, or had recently been charged with such an offence. The legislation has been intended to allow the Court a discretion in some respects, but no discretion if the person is charged and has before it an offence which involves violent conduct, but if that offence is not before the Court, then the Court can consider the person to see whether he or she is, for other reasons, eligible or appropriate to enter a Drug Court program.

I return to the decision in Loughnan (supra), and the suggestion that if a person on program is charged with such an offence, they are thereby excluded from the program. Section 10 of the Drug Court Act in fact provides:

(1) If it is satisfied, on the balance of probabilities, that a drug offender has failed to comply with his or her program, the Drug Court: (a) may, in accordance with the program, impose any one or more of the sanctions specified in the program as sanctions that the Court may impose on the drug offender, or (b) if it is also satisfied that there is no useful purpose to be served in the drug offender's further participation in the program, may decide to terminate the program. (2) Without affecting the other circumstances in which a drug offender is taken to have failed to comply with his or her program, a drug offender is taken to have failed to comply with the program if the drug offender is charged before a court with an offence referred to in section 5 (2).

The fact that a person has failed to comply with his or her programme then gives the Court the option to consider whether there is a useful purpose to be served in him or her remaining on a program. In considering if there is a useful purpose the Court has often considered the competing beneficial purposes to the offender and the community and has, for example, taken the view on occasions that the risk to the community is so great that it outweighs the benefit to the offender, and terminated programs. On other occasions where offences have been committed, it has allowed people to remain on a program. The mere fact that they have been charged does not result in automatic termination of a program, but rather, only causing termination to be considered.

The mere fact that Mr Ahmad has been charged with that offence of assault occasioning actual bodily harm, which is not before this Court, does not render him ineligible to enter a program.

In exercising my discretion under s7, I take into account at two previous matters that the Drug Court has considered, and they are each people who have been on program, and then charged with offences which fall within s5(2). One was an offence of supply, and the other one was offence involving violent conduct, and the issues seem to me to be exactly the same.

At the present stage, Mr Ahmad has been convicted of this offence. The facts of the offence, whilst they involve violence appear to have occurred in a context that he would not normally be within if he were in this Drug Court program. Nothing suggests that he has a history of violent conduct at all. Were it the fact that Mr Ahmad had been sentenced in January for this offence, I have little doubt that the Drug Court today would be saying it would not interfere with the appropriateness of his entering a Drug Court program.

I am concerned that there might be further circumstances in the future which intervene, just as there were in another cases where the person was in fact held without bail for a long period of time before he was returned to his program. But at the present stage, it is not inconsistent with what is facing at least one, and perhaps more than one, other participant at the present time. It is no different than it would be if he were facing a charge that did not involve violent conduct, where he wanted to plead not guilty at the present time. I do not think it should impede his entry in the Drug Court program.

I find that Mr Ahmad is, subject to other things being correct, eligible, and that it is appropriate for him to enter his program.

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