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) : CCA 60702/99 HEARING DATE(S) : 28 November 2000 JUDGMENT DATE : 28 November 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 Murrell DCJ OFFICER :

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

IN THE COURT OF CRIMINAL APPEAL 60702/99 DUNFORD J Tuesday, 28 NOVEMBER 2000 R v Salehedine EL-HAMID JUDGMENT 1 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guilty to two counts of driving a motor vehicle whilst unlicensed contrary to s 6(1)(A) of the Traffic Act 1909 (since repealed), one count of using an uninsured motor vehicle contrary to s 8(1) of the Motor Accidents Act 1988, and one count of using an unregistered vehicle contrary to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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 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. 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. 9 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. 10 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. 11 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."