Regina v Rowley

[2004] NSWCCA 385

CITATION:	Regina v Rowley [2004] NSWCCA 385 revised - 23/11/2004
HEARING DATE(S):	29 July 2004
JUDGMENT DATE:	12 November 2004
JUDGMENT OF:	Adams J; Hislop J; Newman AJ
DECISION:	See paragraph 25
CATCHWORDS:	Criminal law - sentencing - principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal
LEGISLATION CITED:	Drug Court Act 1998 Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Crimes Act 1900 Road Transport (Driving Licensing) Act 1998 Road Transport (Vehicle Registration) Act 1997 Motor Accidents Compensation Act 1999 Crimes Sentencing Procedure Act 1999 Justices Act 1902
CASES CITED:	R v El-Hamid [2000] NSWCCA 497 R v Ohar [2004] NSWCCA 83
PARTIES :	Crown - Respondent Reggi Robert ROWLEY - Applicant
FILE NUMBER(S):	CCA 60026/04
COUNSEL:	S Kluss - Applicant E Wilkins - Respondent
SOLICITORS:	S O'Connor - Applicant S Kavanagh - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2002/0207
LOWER COURT JUDICIAL OFFICER :	Milson DCJ

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60026/04

ADAMS J
HISLOP J
NEWMAN AJ

12 November 2004

REGINA v Reggi Robert ROWLEY

Judgment

1 THE COURT: This is an application for leave to appeal against sentences passed by his Honour Judge Milson in the Parramatta Drug Court on 23 June 2003. Certain of the sentences are described by the relevant legislation as final sentences and others may simply be described as sentences.

2 The provisions of both the Drug Court Act 1998 and the Criminal Appeal Act 1912 create questions relating to both jurisdiction and indeed the forum for the hearing of appeals from the Drug Court. We illustrate this conundrum as follows :- Sections 5AF and 5AA of the Criminal Appeal Act 1912 enable a person convicted by the Drug Court, in relation to a final sentence determined by that court under s12 of the Drug Court Act, to appeal against such a sentence to a single Judge of the Court of Criminal Appeal. Other sentences, which are the result of a conviction for an indictable offence, may be appealed to this Court under s (1)(c) of the Criminal Appeal Act, that is to a court constituted either by three or two Judges. Furthermore convictions involving matters which are usually dealt with summarily by the Local Court, but are dealt with by the Drug Court, may be appealed not to this Court but to the District Court.

3 In the present case the Crown has submitted that certain of the sentences imposed by the Drug Court should be heard by a single Judge of this Court, others by the Court constituted by two or three Judges and finally that certain of the sentences which would normally have been imposed by the Local Court are not the subject of a right of appeal to this Court, but to the District Court.

4 Thus, the first task of this Court is to determine which matters should be heard by a court constituted by two or three Judges, to determine which of the sentences should be determined by a single Judge of this Court and finally, which of the sentences (if any) do not fall within the jurisdiction of this Court.

5 As a matter of practicality, this Court constituted by three Judges heard full argument in respect of all matters. The initial purpose of this judgment is to determine which matters should be determined by a court constituted by the three Judges who heard all the argument, which matters should be determined by a Judge of this Court sitting alone (for which purpose the Chief Justice has nominated Newman AJ as that Judge) and finally which matters do not fall within the jurisdiction of the Court.

6 The sentences imposed by his Honour Judge Milson involve some eleven offences (in addition three offences were taken into account by his Honour on a Form 1). The Crown submitted, in our view quite correctly, that the offences dealt with by his Honour fell into three categories.

7 The first category constituted those sentences which are described as “final sentences” within the meaning of s 12 the Drug Court Act 1998. Those sentences involved offences of aggravated break, enter and steal contrary to the provisions of s 112(2) of the Crimes Act 1900 and the offence of break, enter and steal contrary to the provisions of s 112(1) of the Crimes Act 1900. These offences were contained on a single indictment and were the subject of what is described by the Drug Court Act as an initial sentence imposed by his Honour on 29 October 2002. His final sentences, pursuant to s 12, were imposed on 23 June 2003. It was in relation to those offences that three offences were taken into account under a Form 1. The offences taken into account were one offence of possessing a prohibited drug contrary to the provisions of s 10(1) of the Drug Misuse and Trafficking Act 1985 and two counts of goods in custody contrary to the provisions of s 527C(1)(a) of the Crimes Act 1900. We should add that in relation to the matters contained on the indictment, his Honour at that time was presented with a matter described as a summary matter, namely an offence contrary to s 527C(1)(c) of the Crimes Act 1900 of goods in custody.

8 The second category of offences were offences committed prior to the applicant’s entering the Drug Court program (for the first category of offences which we have just mentioned) but for which the applicant was arrested and charged after the commencement of the program. These offences included another count of Aggravated, break enter and steal contrary to the provisions of s 112(2) of the Crimes Act 1900 and a summary offence of obtaining money by deception, being less than or equal to $2,000 contrary to the provisions of s 178BA of the Crimes Act 1900.

9 The third category of offences were offences described as being “on program” offences, being offences committed while the applicant was participating in the Drug Court program. These offences included two offences of driving while disqualified contrary to s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998, two offences of using an unregistered vehicle contrary to s 18(1) of the Road Transport (Vehicle Registration) Act 1997 and two offences of using an uninsured motor vehicle contrary to the provisions of s 8(1)(a) of the Motor Accidents Compensation Act 1999.

10 The Crown submitted that in relation to the matters which would normally be heard on a trial on indictment which fell within category one, they being sentences which were final sentences pursuant to s 12 of the Drug Court Act, these sentences could only be heard by a single Judge of the Criminal Court.

11 As to the summary matter contained within category one, the Crown’s submission is that this Court has no jurisdiction as an appeal from a summary conviction can only lie to the District Court.

12 As to the matters which would be normally charged on indictment falling within category two the Crown’s submission is that, there being no final sentence pursuant to s 12 of the Drug Act, the only avenue of appeal to this Court is an appeal pursuant to s 5(1)(c) of the Criminal Appeal Act to a court constituted by three or two Judges. As to the summary matter falling within category two, the Crown’s submission is that this Court has no jurisdiction, it being a matter which can only properly be heard on appeal to the District Court.

13 As to the whole of the offences contained within category three it is the Crown’s submission that all of these offences, being summary offences, are not subject to appeal to this Court but to the District Court.

14 As we have said, the jurisdiction of this Court to entertain appeals on sentence from the Drug Court is to be found in ss5(1)(c) and 5AF of the Criminal Appeal Act 1912. These sections are in the following terms :-

“5 Right of appeal in criminal cases

(1) A person convicted on indictment may appeal under this Act to the court:

(c) with the leave of the court against the sentence passed on the person’s conviction”

S5AF

“(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 s 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.”

15 Section 12 of the Drug Court Act states :-

“12 Imposition of final sentence

(1) On terminating a drug offender’s program, The Drug Court must reconsider the drug offender’s initial sentence.

(2) In reconsidering a drug offender’s initial sentence, the Drug Court must take into consideration :

(a) the nature of the drug offender’s participation in his or her program, and
(b) any sanctions that have been imposed on the drug offender during the program, and
(c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment:
(i) under the sentence, or
(ii) under the condition of the program arising under section 8A.

(3) After considering a drug offender’s initial sentence, the Drug Court is to determine the drug offender’s final sentence:

(a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or
(b) by making an order confirming the initial sentence.


(4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence.

(5) (Repealed)”

16 Questions involving the competency of appeals and the constitution of this Court in dealing with appeals from the Drug Court have arisen in two recent decisions of this Court. In R v El-Hamid [2000] NSWCCA 497 Dunford J construed s 5AF(1) of the Criminal Appeal Act 1912 in such a way as to allow a person convicted of a summary offence before the Drug Court to seek leave to appeal to this Court, constituted by a single Judge.

17 In R vOhar [2004] NSWCCA 83 this Court held that appeals flowing from final sentences passed pursuant to s 12 of the Drug Court Act are, by s 5AF of the Criminal Appeal Act, to be heard by a single Judge of this Court. Accordingly, those matters which we described as being in Category 1 in the Crown submissions, are matters which should be determined by a single Judge.

18 We should add that as we have noted above one of the matters dealt with by his Honour in the Court below which fell within Category 1 was a summary offence. In R v Ohar James J, in delivering the principal judgement of this Court, effectively held that summary offences, if they are included within the sentencing order made pursuant to s 12 of the Drug Court Act, were appropriate matters to be heard by a Judge of this Court sitting alone. While for reasons we shall detail later this could lead to a somewhat curious result, we are of the view that this Court should follow the decision in Ohar. Accordingly, in our view those matters which we described as falling within Category 1 are matters which should be heard by a Judge alone. In other words Newman AJ shall determine those matters.

19 The matters which fall within Category 2 include one matter which would normally be charged on indictment and another which would normally be dealt with as a summary offence.

20 At to the matter which would normally be heard on indictment, namely, the offence of aggravated break, enter and steal, this Court in Ohar determined, in our view correctly, that any right of appeal to this Court was not an appeal pursuant to s 5AF of the Criminal Appeal Act but an application for leave to appeal pursuant to s 5(1)(c) of that Act. It follows that we are of the view that it is for a Court constituted by either two or three judges that that appeal should go. However, the offence of obtaining money by deception, being less or equal to the sum of $2,000 contrary to the provisions of s178BA of the Crimes Act, is not a matter which normally would come to this Court pursuant to s 5(1)(c). Indeed an attempt to appeal in the ordinary course of events from the Local Court to this Court under that section would be treated by this Court as being an incompetent appeal.

21 It is this consideration which led the Court in R vOhar to determine that any matters of a summary nature which were contained in a sentencing order of the Drug Court not made pursuant to s12 of the Drug Court Act are incompetent appeals to this Court. In essence what the Court held was that any right of appeal from summary matters determined by the Drug Court were appeals governed by s 5A of the Justices Act 1902. In other words such appeals are appeals which should be determined by the District Court. It was this concept which troubled Dunford J in El-Hamid and indeed continued to trouble him in Ohar. We sympathise with Dunford J’s concern that effectively an appeal from a District Court Judge to another District Court Judge was akin to “an appeal from Caesar to Caesar”. Sympathising as we do with Dunford J’s expressed concern in Ohar, we are of the view that the construction adopted by the Court in that case of ss 5AF and 5(1)(c) of the Criminal Appeal Act 1912 and the provisions of ss 8,12 and 24 of the Drug Court Act is a correct construction.

22 James J in his reasons in Ohar’s case held that because appeals pursuant to s 5(1)(c) are confined to appeals by persons convicted on indictment and that appeals pursuant to s 5AF are confined to appeals from final sentences imposed by judges of the Drug Court, sentences imposed by the Drug Court which do not fall within ss 5(1)(c) or 5AF are not appeals which can be bought to this Court. As we have indicated above the Court held in Ohar that those matters should be determined by the District Court pursuant to s 5A of the Justices Act.

23 In this case it was submitted, on behalf of the applicant, that because the provisions of s 15(3) of the Drug Court Act 1998 exclude the application of s 58 of the Crimes Sentencing Procedure Act 1999 to sentences imposed by the Drug Court this provision gives the Drug Court a more extensive jurisdiction than the Local Court in that it can accumulate sentences outside a three year period. Accordingly it was put that it would be appropriate for those offences which may be described as summary offences to be heard by a single Judge of this Court pursuant to s 5AF of the Criminal Appeal Act.

24 However in our view this argument must fail. It fails because the summary offences which fall within categories 2 and 3 of the matters before this Court are not :- a) final sentences made pursuant to s 12 of the Drug Court Act and b) are not sentences passed on a person convicted on an indictment pursuant to s 5(1)(c). This Court, being a creature of statute, can only deal with those matters which fall within the powers given to it by its enabling statute. Here as the summary matters contained in categories 2 and 3 do not fall within appeals which this Court can entertain pursuant to s5(1)(c) and 5AF of the Criminal Appeal Act 1912, they are incompetent appeals to this Court. Accordingly we are of the view that the matter of obtaining money by deception contrary to the provisions of s 178BA of the Crimes Act 1900 in the second category of offences and all the matters contained in the third category of offences are not matters in which this Court can entertain an appeal. They should be brought in the District Court pursuant to s 5A of the Justices Act. This as we have stated above leads to a somewhat curious result. In the category 1 offences there was, as we have said, a matter which would normally be dealt with summarily. That was the offence of goods in custody contrary to s 527C(1c) of the Crimes Act 1900. On the face of it, it would seem that it should suffer the same fate as the summary matters contained in categories 2 and 3. However, as the matter was in fact the subject of the final sentence passed by his Honour below, it, unlike the summary matters contained in categories 2 and 3, falls within s12 of the Drug Court Act and thus within the purview of s 5AF of the Criminal Appeal Act 1912. Thus, we have the curious result where one summary matter may be the subject of an appeal to a single Judge pursuant to s 5AF because it is contained within an order made pursuant to s 12 of the Drug Court Act but other summary matters which do not fall within that section of the Drug Court Act can not be brought before this Court.

25 To summarise our findings. We find that all of the matters within category 1 are matters which may be heard and determined by a single judge of this Court pursuant to s 5AF. We find that the sentence imposed by Judge Milson in the offence within the second category, being a matter of aggravated break, enter and steal, contrary to the provisions of s 112(2) of the Crimes Act, is a matter which can be entertained by the Court of Criminal Appeal constituted by two or three Judges. We find that the sentences relating to the summary offences of obtain money by deception contrary to s 178BA of the Crimes Act 1900 (the summary offence in the second category) and all the matters falling within the third category are matters which can not be entertained by this Court but by the District Court pursuant to s 5A of the Justices Act.

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Last Modified: 11/29/2004