CEO of Customs v Delacour

[2006] NSWDC 196

CITATION:	CEO OF CUSTOMS v DELACOUR [2006] NSWDC 196
HEARING DATE(S):	18/04/2006
EX TEMPORE JUDGMENT DATE:	04/18/2006
JURISDICTION:	Criminal
JUDGMENT OF:	Donovan QC DCJ
DECISION:	The Appeal to this Court is incompetent and is therefore dismissed; costs refused.
CATCHWORDS:	Chief Executive Officer of Customs - Appeal - Section 248 of The Customs Act - Appeal Against Sentence or Penalty
LEGISLATION CITED:	Crimes (Local Courts Appeal & Review Act) 2001 Customs Act 1901
PARTIES:	THE CEO OF CUSTOMS JONATHON DELACOUR
FILE NUMBER(S):	06/12/0258
COUNSEL:	Mr D Thiering (Appellant) Mr J Galluzo (Respondent)
SOLICITORS:	Jane Kardos - Solicitor AGS (Appellant Mr J Knight (Respondent)

JUDGMENT

HIS HONOUR

1 The prosecutor who is the chief executive officer of Customs brought four prosecutions against the respondent in the Local Court. The respondent pleaded guilty to the four matters which were under the Customs Act. The magistrate granted a recognisance and discharged the respondent. There appears to be little doubt that the magistrate was exercising his powers under s 19B of the Crimes Act of the Commonwealth, and I conclude that he was exercising his powers under s 19B (1)(d) which permits him to discharge the person without proceeding to conviction upon the persons giving security with or without surety by recognisance or otherwise that he would comply with the conditions. Section 19B (1)(d)(i),(ii) and (iii) refer to some of the conditions. The conditions are not significant for the present purposes.

2 The informant, the chief executive officer of Customs, has brought an appeal in this court against the leniency of the orders made by the magistrate. The appellant relies upon s 248 of the Customs Act together with s 23 of the Crimes (Local Courts Appeal and Review) Act 2001.

3 Section 248 provides that the provision of the law relating to summary proceedings in force in the state where the proceedings are instituted, shall apply to all Customs prosecutions before a court of summary jurisdiction. It further says:

“And an appeal shall lie from any conviction order for condemnation or order of dismissal to the court and in such manner provided by the law of the state...where such conviction or order is made for appeals from convictions or orders of dismissal, and notwithstanding anything to the contrary in the law of the state or territory, an appeal shall lie from an order of dismissal to any court to which, and in the manner in which an appeal lies from a conviction.”

4 I note that I have inserted only the commas which are indicated in the text. Section 48 therefore seems to grant an appeal against the following:

“Any conviction order for condemnation or order for dismissal...” and also “from an order of dismissal to any court to which and in the manner in which an appeal lies from a conviction.”

5 The provision does not refer expressly to any sentence or penalty. It refers to “any conviction, order for condemnation or order of dismissal...” That phrase does not seem to me to include a sentence or penalty. Further, more specifically, it does not refer to an order for discharge under s 19B.

6 The appellant has mounted an argument that the word “dismissal” used in s 248 would include a dismissal under s 19B and therefore it was the intention of the legislature that a discharge under s 19B should also be included.

7 If s 248 provided for an appeal against sentence or penalty, I would find that argument more attractive. It seems to me that the absence of any penalty or sentence from s 248, means that there is on the face of it, no appeal. The section provides that there may be an appeal in the manner provided by the law of the state or territory, “where such conviction or order is made for appeals, from convictions or orders of dismissal...”

8 That phrase does not include penalties or sentence. Even if it did, the state legislation does not provide generally for an appeal against penalties or sentences.

9 S 11 of the Crimes (Local Courts Appeal and Review) Act 2001 says that any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence. S 23 grants appeals to a prosecutor in particular circumstances. S 23 (1) grants a right to the Director of Public Prosecutions and allows the Director of Public Prosecutions to appeal as of right against a sentence imposed by a Local Court in proceedings for any summary offence.

10 I am told that the proceedings before the Local Court in this appeal were for a summary offence. The proceedings before the Local Court were not brought by the New South Wales Director of Public Prosecutions, nor was it brought by the Commonwealth Director of Public Prosecutions. It was brought, as I have noted before, by an official of a different character, namely the chief executive officer of Customs.

11 Even if s 248 in some way applied the provisions of s 23 to a prosecutor, to allow an appeal against sentence, it seems to me that the limitation in s 23 that the appeal is available to the Director of Public Prosecutions (be that the state or Commonwealth) does not include the chief executive officer of Customs. It follows that the right given to appeal against sentence under s 23 cannot include the chief executive officer of Customs.

12 I am confirmed in this view by the provisions of s 23(2). The provisions of s 23(2) apply to any prosecutor, whether the Director of Public Prosecutions, a private prosecutor, an official prosecutor, or any other type of prosecutor. That provides that any prosecutor may appeal to the District Court against an order for costs made against the prosecutor in either committal proceedings or in summary proceedings.

13 Thus an appeal only arises where there is an order made against a prosecutor. The order under s 19B is not an order made against the prosecutor. It is an order made against the defendant and I can find nothing in s 23 which would give a prosecutor who is not the Director of Public Prosecutions (either State or Commonwealth) the right to appeal against a sentence.

14 If I am correct in this analysis it follows that this court has no power to hear an appeal against sentence brought by a prosecutor other than the Director of Public Prosecutions (be that State or Commonwealth). This court is therefore without jurisdiction and it follows that the appeal to this court is incompetent and is therefore dismissed.

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