R v Cook [2001] NSWDRGC 9

R v Cook [2001] NSWDRGC 9

An offence against s33B(a) of the Crimes Act 1900 is not, by its elements alone, an offence involving violent conduct because it can be committed by use of an offensive weapon to prevent apprehension without actual or threatened violence towards a human victim. The offender was therefore not ineligible under s5 on that basis. However, having regard to his profoundly disturbed developmental history, his long history of possession and use of weapons in connection with theft offences, and the risk of relapse and further offending, there would be a significant ongoing risk of violence towards members of the community if he were placed on a Drug Court program. The Court therefore declined in...

Jurisdiction
Australia
Judgment Date
04 October 2001
Procedural Posture
Drug Court Referral Concerning Eligibility and Sentence to a Drug Court Program / Preliminary Issue Under S5 of the Drug Court Act 1998 and Discretionary Decision Under S7
Outcome
The offender was not found ineligible under s5 by reason of the s33B(a) charge alone, but the Court declined to sentence him under s7 or place him on a Drug Court program.
Legal Topics
['eligibility for Drug Court Program' 'offence Involving Violent Conduct' 'use Offensive Weapon With Intent to Prevent Lawful Apprehension' 'discretion to Place Offender on Drug Court Program' 'risk of Violence to the Community']
['criminal Law' 'drug Court Procedure' 'sentencing'] ['eligibility for Drug Court Program' 'offence Involving Violent Conduct' 'use Offensive Weapon With Intent to Prevent Lawful Apprehension' 'discretion to Place Offender on Drug Court Program' 'risk of Violence to the Community']

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Procedural Posture

Drug Court Referral Concerning Eligibility and Sentence to a Drug Court Program / Preliminary Issue Under S5 of the Drug Court Act 1998 and Discretionary Decision Under S7

Legal Issues

  1. 1 ['Whether the offender was ineligible under s5 of the Drug Court Act 1998 because he had been charged with an offence involving violent conduct.' 'Whether an offence against s33B(a) of the Crimes Act 1900 for use of an offensive weapon with intent to prevent lawful apprehension is an offence involving violent conduct.' 'Whether, even if eligible, the Court should exercise its discretion under s7 of the Drug Court Act 1998 to sentence the offender and place him on a Drug Court program.']

Ratio Decidendi

An offence against s33B(a) of the Crimes Act 1900 is not, by its elements alone, an offence involving violent conduct because it can be committed by use of an offensive weapon to prevent apprehension without actual or threatened violence towards a human victim. The offender was therefore not ineligible under s5 on that basis. However, having regard to his profoundly disturbed developmental history, his long history of possession and use of weapons in connection with theft offences, and the risk of relapse and further offending, there would be a significant ongoing risk of violence towards members of the community if he were placed on a Drug Court program. The Court therefore declined in...

Court Disposition

The offender was not found ineligible under s5 by reason of the s33B(a) charge alone, but the Court declined to sentence him under s7 or place him on a Drug Court program.

Orders

  • ['The Court declined to sentence the offender under s7 of the Drug Court Act 1998.' 'The offender was not placed on a Drug Court program.']