R v El-Hamid - [2000] NSWCCA 497

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v El-Hamid [2000] NSWCCA 497

FILE NUMBER(S):
60702/99

HEARING DATE(S): 28 November 2000

JUDGMENT DATE: 28/11/2000

PARTIES:
Regina
Salahedine El-Hamid (Appellant)

JUDGMENT OF: Dunford J

LOWER COURT JURISDICTION: Drug Court

LOWER COURT FILE NUMBER(S): 99/209

LOWER COURT JUDICIAL OFFICER: Murrell DCJ

COUNSEL:
RA Hulme (Crown)
Appellant in person

SOLICITORS:
SE O'Connor (Crown)
Appellant in person

CATCHWORDS:
CRIMINAL LAW & PROCEDURE
Appeal
Drug Court
Right of Appeal to Court of Criminal Appeal

LEGISLATION CITED:
Drug Court Act 1998, ss 7, 8, 11, 12, 15, 24
Criminal Appeal Act 1912, ss 5AA, 5AF

DECISION:
See paras 25 & 26

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60702/99
DUNFORD J

Tuesday, 28 NOVEMBER 2000

R v Salehedine EL-HAMID

JUDGMENT

DUNFORD J: This is an appeal by Salehedine El-Hamid against the penalties and orders imposed by her Honour Senior Judge Murrell SC in the Drug Court of New South Wales on 27 July 1999, upon the appellant pleading guilty to two counts of driving a motor vehicle whilst unlicensed contrary to s 6(1)(A) of the Traffic Act 1909 (since repealed), one count of using an uninsured motor vehicle contrary to s 8(1) of the Motor Accidents Act 1988, and one count of using an unregistered vehicle contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1997.
At the same time her Honour dealt with a number of shoplifting, goods in custody, and stealing offences, in respect of which she sentenced the appellant pursuant to s 7 of the Drug Court Act 1998, but those sentences were suspended on the appellant entering into a Drug Court program.
Subsequently, on the Court being satisfied with his progress in that program, final sentences were imposed by way of a bond in respect of those dishonesty offences.
In respect of each of the traffic matters, her Honour imposed a fine of one penalty unit, that is $110, and ordered that the appellant be disqualified from holding or obtaining a driver's licence for a period of three years. In dealing with the traffic matters she said that the sentences were imposed under s 24 of the Act.
A preliminary question has arisen as to the jurisdiction of this Court to hear this appeal. Section 7 of the Drug Court Act applies to the conviction and sentencing of a person who has pleaded guilty and been assessed as suitable to enter a program under that Act. Under that section the Court imposes an initial sentence, and also suspends execution of the sentence for the duration of the program. Subsequently, under s 11, there is provision for the termination of the offender's program, either because of its successful completion, or because the Court is satisfied that there is no useful purpose to be served by the offender's further participation in it, and the Court is then to determine the final sentence in accordance with s 12.
Section 8 provides that in respect of a person who has been referred to the Drug Court but whom the Drug Court has not convicted and sentenced under s 7, the Court may convict and sentence the person for the offence, only if the person consents to being dealt with under the section.
That is what happened in the present case. Because of the nature of the offences, it was not appropriate to deal with these traffic matters by requiring the person to undergo a Drug Court program, but as he consented, the matters were dealt with under s 8.
Her Honour referred to exercising jurisdiction in respect of the traffic matters under s 24, but that section is a general section which confers on the Drug Court the criminal jurisdiction of the District Court and the Local Court, and gives the Drug Court all the functions of both those courts.
Section 15 provides for the sentences which may be imposed by the Drug Court, for indictable offences any penalty which could have been imposed by the District Court if the matter had been dealt with on indictment in that Court, and for summary offences any penalty which the Local Court could have imposed.
The effect of these provisions is that in sentencing the appellant for these traffic offences, her Honour was acting pursuant to s 8, exercising the jurisdiction conferred by s 24(1)(b), and she therefore pursuant to s 15(1)(b) had the power to impose the same penalties as could have been imposed by the Local Court.
Section 5AF of the Criminal Appeal Act 1912 is the only provision which provides for appeals in matters dealt with by the Drug Court. It is in the following terms:
"(1)Section 5AA applies to and in respect of a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Part 2 of the Drug Court Act 1998 (in relation only to a final sentence determined by the Court under section 12 of that Act) in the same way as it applies to a person referred to in section 5AA (1).
(2)For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court.
(3)The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct."
Section 5AA(1) of that Act provides that where a person is convicted of an offence by the Supreme Court in its summary jurisdiction, such person may appeal to this Court against the conviction (including any sentence imposed) or order.
The difficulty in the present case arises by the words in s 5AF(1) in brackets, namely: "in relation only to a final sentence determined by the Court under section 12 of that Act".
The learned Crown Prosecutor has submitted that having regard to those words, s 5AF has no application to any sentence or order of the Drug Court, except a final sentence imposed under s 12, that is, the sentence that is imposed after a Drug Court program has been terminated or completed. He submits there is, therefore, no right of appeal against the sentence or penalty in the case of a matter dealt with under s 8.
He submitted that the only right of appeal in such cases was pursuant to s 5A of the Justices Act 1902, which deals with appeals from the Local Court to the District Court, so that any appeal against penalty lies to the District Court.
I reject this submission, because it would mean that in a case such as the present there would be an appeal from one judge of the District Court to another judge of the same Court, and I know of no other circumstance where an appeal lies from a single judge of a Court to another single judge of the same Court.
Moreover, there may be cases where more serious matters which would normally be triable on indictment, were dealt with under s 8, and orders, for example, for community service or periodic detention were made, for example if those matters came to light after a person had entered a program pursuant to s 7. If the Crown Prosecutor's submission were correct, it is difficult to see how there could in such circumstances be any right of appeal at all.
In my view, the words in brackets in s 5AF(1) should be read as meaning that in relation to matters dealt with under s 7, there is no appeal in relation to the initial sentence imposed under that section, but only in relation to the final sentence imposed under s 12, and that the limitation should not be regarded as in any way limiting the right of appeal in cases dealt with under s 8.
Although I consider this the proper construction of s 5AF, it is not necessary to go so far in relation to this case, because the appellant does not wish to appeal against the fines, but only in respect of the period of disqualification, and as s 5AF imports s 5AA, there is a right of appeal not only against the conviction, including any sentence imposed, but also against any "order" of the Court appealed from, and I regard the orders for disqualification as orders rather than as part of the sentence.
I am therefore satisfied that this Court does have jurisdiction to deal with the appellant's appeal.
Her Honour appears to have regarded the disqualification period of three years as mandatory, and there is material in Ex. A before her Honour which seems to have been the reason for her acting under this impression. The drive whilst unlicensed offences were, however, charged under s 6(1)(a) of the Traffic Act 1909, and neither the learned Crown Prosecutor, nor myself, can find anything in that section, or in ss 10 or 10A, which impose a mandatory period of disqualification upon persons convicted of an offence under s 6(1)(a). There is, however, a general power to impose a period of disqualification pursuant to s 10(2).
The defendant has a poor driving record, and a number of previous convictions of this nature, but since being dealt with by the Drug Court he appears to have rehabilitated himself. He is conducting a business as a tiler, and I am satisfied from the evidence presented by the appellant that the lack of a driving licence is hindering him in that business to a significant degree. He also informs me, and I accept, that he has not driven since the making of the orders by her Honour on 27 July 1999.
Having regard to his appalling record in this regard, I am satisfied that a period of disqualification was called for, but in all the circumstances I consider that eighteen months is a sufficient period to impress on the appellant the fact that in future he must always be licensed, and must maintain his licence, fully paid up. This applies to each of the drive whilst unlicensed charges.
In relation to the drive unregistered vehicle and use uninsured vehicle, it appears there is no power to impose a period of disqualification. The notice of appeal was issued out of time, but the Crown has no objection to the time for Mr El-Hamid to file an appeal being extended.
I therefore make the following orders. I grant the application for extension of time and I grant leave to appeal. In respect of the matters of use an uninsured vehicle and use an unregistered vehicle, the appeals are upheld. I confirm the fines and quash the orders for disqualification.
In respect of each of the two matters of drive whilst unlicensed, the appeals are upheld. I confirm the fines but quash the orders for disqualification, and in lieu thereof, in each case, I order that the appellant be disqualified from holding any driver's licence under the relevant legislation for a period of eighteen months to date from 27 July 1999.

oOo

LAST UPDATED: 08/12/2000