Drug Court New South Wales Medium Neutral Citation: R v Miller; R v Omar [2021] NSWDRGC 1 Hearing dates: 9 December 2020; 3 February 2021 Decision date: 09 March 2021 Before: His Honour Senior Judge Dive Decision: Not eligible for Drug Court Program Legislation Cited: Alcan (NT) v Territory Revenue [2009] 239 CLR 27 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Drug Court Act 1998 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Judiciary Act 1903 (Cth) Cases Cited: Bull v Attorney-General of New South Wales [1913] 17 CLR 356 Chandler v DPP [2000] 113 A Crim R 196 Category: Principal judgment Parties: Commonwealth Crown David Miller (Offender) Ibrahim Omar (Offender) Representation: T Muir for the Crown J Glissan QC for offender Miller J Jiang for offender Omar File Number(s): R v Miller 2019/00054285, 2019/00306828; R v Omar 2019/00218892 Judgment 1. Mr David Miller and Mr Ibrahim Omar are before the Drug Court for a determination as to whether their federal offences can be the subject of a Drug Court program under the Drug Court Act 1998 (NSW). Despite the Drug Court having been in operation for over twenty years, it is my understanding that this issue has not been the subject of a contested hearing before. 2. The charges involve a conspiracy whereby the two offenders, together with another, conspired together to purport to be genuine child care providers and defrauded the Commonwealth Department of Education of over $9 million by falsely claiming and obtaining child care payments. False claims were made for nearly 400,000 sessions of child care on behalf of 2,132 children. 3. The matters had some history in the District Court of NSW before they were adjourned to the Drug Court. In written submissions, the Crown helpfully set out that history, and I adopt much of that summary in the following paragraphs. Background 1. On 17 July 2020 at the Sydney District Court (SDC) the offender Mr David Miller [also known as Mohammad Omar] was arraigned on an indictment dated 10 June 2020, pleading guilty to two federal offences, being: 1. dealing with money reasonably suspected to be proceeds of crime [greater than $100,000] contrary to s 400.9(1) and s 11.2 of the Criminal Code and 2. conspiracy to defraud the Commonwealth, contrary to s 135.4(1) of the Criminal Code. 1. Also on 17 July 2020 at the SDC the offender, Mr Ibrahim Omar, who is Mr Miller's brother, confirmed his plea of guilty entered in the Local Court of New South Wales, to one federal offence of conspiracy to defraud the Commonwealth, contrary to section 135.4(1) of the Criminal Code. 2. Agreed Facts were ultimately tendered in each matter and both proceedings were adjourned for sentence at SDC on 30 October 2020, with timetables made for filing of evidence. 3. The Crown's ultimate sentencing submission in respect of both Mr Miller and Mr Omar was to be that fulltime imprisonment was the only appropriate penalty (which remains its submission). 4. On 15 September 2020, the solicitor for Mr Miller and Mr Omar emailed the Registrar of the SDC in the following terms: "(1) We note the above matter is listed for Hearing at the District Court in Sydney on Friday 30 October 2020. (2) Accordingly, we confirm that Mr Miller [and Mr Omar] meets the eligibility criteria for the Drug Court and kindly request that an order be made referring him to Drug Court for assessment. (3) We attach a copy of the Statement of Facts and kindly request that the order be made in chambers." (4) We confirm the Crown has been copied in this email." 1. In response, the same day the Crown wrote to the Registrar as follows: "(1) The Crown was not consulted about this request and does not consent to the referral to the Drug Court. (2) We have not been provided with material establishing eligibility; and furthermore, the Crown wishes to be heard on the applicability of Drug Court to Commonwealth Sentence matters." 1. On 7 October 2020 at the SDC the matters were mentioned before his Honour Judge O'Brien. The Crown did not concede the issue of whether the offenders were 'eligible persons' within the meaning of s 5 of the Drug Court Act 1998 (NSW) in so far as they did not "appear to be dependent on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW)) or other drugs prescribed by the regulations. Accordingly the matters were adjourned to 30 October 2020 for sentence and for the parties to argue this issue of 'eligibility'. 2. On 30 October 2020 at SDC medical reports were tendered by the two offenders as to their dependency on the use of relevant, prohibited drugs. His Honour Acting Judge Armitage referred both matters to the Drug Court of New South Wales pursuant to s 6 of the Drug Court Act. The Crown does not concede that the offenders can in fact be 'dealt with' for their offences (s 6(2)(c)) because it submitted (and continues to submit) that the Drug Court has no jurisdiction to sentence federal offenders. 3. On 18 November 2020 at SDC her Honour Judge Yehia SC made orders (by arrangement) for the proceedings to be adjourned to the Drug Court at Parramatta for mention on 9 December 2020 for argument as to jurisdiction. Directions were also made for the parties to file submissions on the issue. The Referral to Drug Court 1. It was accepted by the parties that the most appropriate venue for the determination of eligibility for a Drug Court program would be before this Court. 2. For the purposes of this hearing, it is accepted that the District Court has made the necessary determination under s 6(2) of the Drug Court Act that the offenders "appear" to be eligible and willing to be referred to the Drug Court. 3. A number of issues arise for determination, and they are cascading in nature, whereby the determination of an issue high on the list may render the determination of subsequent issues unnecessary. The Issues The issues are: A: Can the Drug Court sentence an offender for a federal crime, and provide that offender with a Drug Court program? B: Does a Drug Court program fall within Section 20AB of the Crimes Act 1914 (Cth) as a specified State sentencing order? C: A third issue, which was raised but not fully argued, is as to whether the Drug Court could also be satisfied that, having regard to the offenders' antecedents, it would be appropriate for them to participate in a Drug Court program. The Court raised that question, given the gravity of the crimes committed, and the potentially long sentences likely to be imposed – could even a successful Drug Court program address the gravity of the matters? 1. I also note for completeness that the Drug Court has not, in accordance with its ordinary processes, yet made a determination as to another issue of eligibility, that is, whether the offenders "appear to be dependent on the use of prohibited drugs" (s 5(1)(d). That assessment was not made at the time of referral with the usual assistance of Justice Health, given the unusual path to the Drug Court these matters have taken. The referring court is only asked by the legislation to determine whether the offender "appears to be an eligible person" and it is for the Drug Court to determine if they are actually eligible. Such an assessment and determination could still be undertaken, if necessary. 2. Issues B and C only become relevant if there is a pathway for the federal offences referred to the Drug Court to be the subject of a Drug Court program. A: Can a Drug Court program be provided for federal offences? 1. The relevant portions of section 7A of the Drug Court Act provides: 7A Persons accepted into program in relation to offence (1) This section applies to a person who has been referred to the Drug Court under section 6. (2) The Drug Court may deal with a person under this section in relation to an offence if, and only if, it is satisfied as to each of the following matters— (a) that the person is an eligible person, (b) that the person has pleaded guilty to the offence (whether before the referring court or the Drug Court) and has been found guilty of the offence, (c) that, having regard to the person's antecedents, it would be appropriate for the person to participate in a program under this Act, (d) that facilities to supervise and control the person's participation in such a program are available, and have been allocated to the person, in accordance with the guidelines prescribed by the regulations, (e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section, (f) that the person has been informed of the Drug Court's powers under Division 2 and of the respective consequences, as regards the sentence to be imposed under section 12, of the person's compliance or non-compliance with a program, (g) that any person (an "affected person") with whom it is likely the person would reside during the period of the person's participation in a program under this Act has consented in writing to the person residing with the affected person during that period. (3) Subject to subsection (4), the Drug Court deals with a person under this section in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999. (4) Sections 44–48 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the conviction and sentencing of a person under this section. 1. In the Outline of Submissions dated 30 November 2020, the defence argues (paragraph 22) that each applicant "is or has been found to be an eligible person…" and, having pleaded guilty, and being otherwise appropriate or suitable to be admitted to the program, that the jurisdiction of the Drug Court is thereby determined. That argument must be addressed immediately. The offenders only need to "appear to be eligible" when before the District Court, and these matters were sent to this jurisdiction so this issue of jurisdiction could be determined at the Drug Court, and not at a busy trial court. No determination of eligibility has been made, and the fact that the Drug Court has the federal crimes before it, and jurisdiction to determine whether such offenders are eligible persons, does not provide the broader jurisdiction which the defence seeks to establish. So the fact that the Drug Court has the jurisdiction to hear this argument does not mean the Drug Court has jurisdiction to sentence the applicants and place them on program. 2. The most significant hurdle facing the defence is s 7A(3) of the Drug Court Act, which requires the Drug Court to sentence the person in accordance with the Crimes (Sentencing Procedure) Act 1999. In written submissions, senior counsel for the defence acknowledges that this is inconsistent with the general obligation to sentence federal offences in accordance with Part 1B of the Crimes Act 1914 (Cth), and in oral submissions concedes that this is perhaps the only stumbling block regarding jurisdiction. I note for completeness that there are several other important provisions within s 7A which have not been argued or addressed, such as there being facilities available to supervise and control the referred person's participation in a program. Again, those issues could be addressed later if the principal issue is determined in the applicants' favour. 3. The defence relies on the interpretation of s 68 of the Judiciary Act 1903 (Cth) whereby State courts receive jurisdiction to determine federal crimes, and how they exercise that jurisdiction. The relevant portions of section 68 provide: S 68 Jurisdiction of State and Territory courts in criminal cases (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: a. their summary conviction; and b. their examination and commitment for trial on indictment; and c. their trial and conviction on indictment; and d. the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: a. the summary conviction; or b. the examination and commitment for trial on indictment; or c. the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. …… (7) The procedure referred to in subsection (1) and the jurisdiction referred to in subsection (2) shall be deemed to include procedure and jurisdiction in accordance with provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he or she could be prosecuted on indictment may be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in subsections (1) and (2) to any such trial or conviction shall be read as including any conviction or sentencing in accordance with any such provisions. 1. The defence argument is that s 68 picks up and applies State procedural laws including sentencing laws [my emphasis] to federal prosecutions in State courts. It is also submitted that the NSW Crimes (Sentencing Procedure) Act (CSPA) must be regarded as a procedural law for the purposes of the Judiciary Act. 2. In oral arguments on 3 February 2021, senior counsel for the applicants submitted that the CSPA and the Commonwealth Act can lie alongside each other, and that it would be possible to sentence in accordance with both Acts at the same time, given the provisions provided in s 20AB of the Commonwealth Crimes Act regarding imposing a drug or alcohol treatment order. 3. The Crown argues that the sentencing regime provided under the Drug Court Act is expressed in mandatory terms, and requires an Initial Sentence and then a Final Sentence which must accord with the CSPA. The Crown says that these requirements are inconsistent with the sentencing regime set out in the Commonwealth Crimes Act, which deals with a diverse range of sentencing principles, including the commencement of sentences, the accumulation of and concurrency of sentences, and (importantly) sentencing options (s 20AB). 4. Both the Crown and defence submissions touched upon s 5A of the Drug Court Act in relation to "eligible convicted offenders" who are prisoners who have already been sentenced in the District or Local Court, and who may be referred to the Drug Court regarding the possibility of making of a Compulsory Drug Treatment Order (CDTO). Under such an order the offender is initially imprisoned at the Compulsory Drug Treatment Centre, and is the subject of a statutory regime of treatment and access to the community which has the judicial oversight of the Drug Court. The Drug Court has no role in sentencing such offenders, however does determine their eligibility and suitability for a CDTO, and also determines issues at to parole. The nature of that program and the legislation which supports it is, in my view, of no assistance in the argument before the court today. Consideration 1. There can be no doubt that the Drug Court of NSW is a creature of statute, and its powers are to be found within the Drug Court Act. Section 24 of the Drug Court Act provides the Court with the criminal jurisdictions of the District Court and the Local Court, and all of the functions of those courts to enable it to exercise the jurisdiction of those Courts. The Act also provides the court with some quite special sentencing and other powers to allow it to provide Drug Court programs. 2. The Drug Court Act is beneficial legislation. The concept of legislation having beneficial purposes was referred to in Chandler v DPP [2000] 113 A Crim R 196, which in turn referred to Bull v Attorney-General of New South Wales [1913] 17 CLR 356, where the concept was explained (at page 384) in the following way; "(1) The correct way of reading legislation where there is such an ambiguity is to construe them generously. Not that the true signification of the provision should be strained or exceeded, but that it should be construed to give the fullest relief with which the fair meaning of its language will allow." 1. On the issue of statutory interpretation, the Crown submissions set out some helpful authorities in relation to the principles thereof. The Crown referred to the High Court decision in Alcan (NT) v Territory Revenue [2009] 239 CLR 27 at (47), "(1) This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." 1. In my view, the Drug Court cannot sentence offenders who have committed federal crimes. The words of s 7A(3) of the Drug Court Act regarding the sentencing law to apply are clear and concise. There can be no partnership with the Commonwealth laws. Section 7A(3) is an insurmountable hurdle facing the defendants. 2. Further, the problems facing the applicants go beyond s 7A(3). Other provisions in the Drug Court Act provide a quite detailed regime in relation to firstly, the imposition of an Initial Sentence, and then the suspension of that sentence upon entering into the conditions of a Drug Court program. The Drug Court Act deals with the ways in which a Drug Court program is terminated, before s 12 provides special provisions in relation to the confirmation or setting aside of the Initial Sentence, and the imposition of a Final Sentence, again to be in accordance with the Crimes (Sentencing Procedure) Act. To decide otherwise would be in direct contradiction of the very plain words of the Drug Court Act. 3. Submissions were also made in relation to Section 24 of the Drug Court Act. In practice, this is a very useful section of the Act. The broad jurisdiction set out therein allows the Court to deal with matters which could never be dealt with under section 7A (whereby a Drug Court program is provided). For example, an offender might be referred to the Drug Court on a number of eligible offences, and those offences are accompanied by a low level offence of violence. The offence of violence could never be the subject of a Drug Court program via an Initial Sentence, given the prohibitions in s 5(2)(b) which renders offences involving violent conduct ineligible. So, if all other circumstances make it appropriate, the Drug Court will exercise the jurisdiction of the Local Court and determine the ineligible violent offence by way of perhaps a short custodial sentence or remand under s 11 of the CSPA. This then allows the offender to receive an Initial Sentence in relation to the remaining eligible offences, and be released to a Drug Court program. 4. I also understand that on occasion some minor federal offences have been dealt with in this fashion – for example if a group of crimes of dishonesty under State law are accompanied by a single federal offence, such as the possession of a counterfeit banknote. In relation to the federal offence, the federal sentencing regime has been applied in such a way as to render the offender available to start a Drug Court program. I do note in passing that counsel for the Crown appearing in this matter might have a contrary view regarding even that scenario. 5. In my view, the fact that the Drug Court deals with some ancillary cases under s 24 at times, and thereby utilising the ordinary powers of the District Court or the Local Court to do so, only emphasises the clear distinction between having the power to exercise those ordinary powers, and the legislative regime provided in the Drug Court Act to provide a Drug Court program within the explicit requirements of s 5 and s 7A, including the requirement for sentencing to be in accordance with the Crimes (Sentencing Procedure) Act. B. Does a Drug Court program fall within Section 20AB of the Crimes Act 1914 (Cth) as a specified State sentencing order? 1. Given the determination above, there is no need to determine this issue, apart from making two observations. Firstly, the Drug Court program is not specifically included within section 20AB of the Crimes Act 1914 (Cth), nor is the Drug Court Act prescribed in rule 15 of the Crimes Regulations 2019. In my view, for the NSW Drug Court program to be included, the reference to this court would need to be quite specific, and the fact that the Drug Court program could be loosely described as a 'drug treatment order' is not sufficient. C: Having regard to the offenders' antecedents, would be appropriate for them to participate in a Drug Court program? 1. If I am wrong regarding the question of eligibility, the question of appropriateness would need to be determined after proper opportunity for argument. I will take the issue no further at this time. In the light of the above, the matters will be returned to the District Court in Sydney on Thursday 17 March 2021, not before 10.30am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2021