New South Wales Court of Criminal Appeal CITATION: Adam Robert BELL v R [2007] NSWCCA 369 HEARING DATE(S): 7 December 2007 JUDGMENT OF: Tobias JA at 1; Hidden J at 2; Hulme J at 14 EX TEMPORE JUDGMENT DATE: 7 December 2007 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW: appeal from Drug Court sentences - extent of jurisdiction of Court of Criminal Appeal Drug Court Act 1998 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 PARTIES: Adam Robert BELL (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/2915 COUNSEL: Self represented (Applicant) M Barr (Respondent) SOLICITORS: Self represented (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Drug Court LOWER COURT FILE NUMBER(S): 2006/0084 LOWER COURT JUDICIAL OFFICER: Barnett DCJ IN THE COURT OF CRIMINAL APPEAL 2007/2915 TOBIAS JA HULME J HIDDEN J Friday 7 December 2007 Adam Robert BELL v Regina Judgment 1 TOBIAS JA: I will ask Hidden J to deliver the first judgment. 2 HIDDEN J: The applicant, Adam Bell, appears in this Court unrepresented. He has appealed against sentences imposed upon him by his Honour Judge Barnett sitting in the Drug Court on 2 March 2007. He had earlier appeared before Judge Dive of that court, having been referred to the court under s6 of the Drug Court Act in respect of a number of offences. 3 On 15 May 2006 Judge Dive, exercising the power under Pt 2 of that Act, passed sentences which he suspended and the applicant entered the Drug Court Program. Unfortunately, he was not successful in his compliance with that program and committed further offences. On 12 December 2006 Judge Dive terminated his participation in the program. 4 He came before Judge Barnett on 31 January 2007 for two purposes: firstly, for consideration of the passing of final sentences in respect of the matters for which he had been dealt with by Judge Dive but also to be dealt with in respect of a number of further offences, some committed before he entered the program, some committed after. Those offences were either indictable offences being dealt with summarily or purely summary offences. 5 What appears clear, however, from the transcript of 31 January 2007 and from Judge Barnett's remarks on sentence, is that in respect of those further offences he was not being referred to the Drug Court with a view to possible entry into the program under s6 of the Drug Court Act. Rather, those offences had been adjourned to the Drug Court, apparently purely for reasons of convenience, by Local Courts for the purpose of their being dealt with by a judge of the Drug Court exercising the jurisdiction of a Local Court pursuant to s24(1)(b) of the Drug Court Act. That is, indeed, what happened and Judge Barnett passed final sentences in respect of the original charges and passed a series of sentences in respect of the further offences. 6 Almost all those sentences have since expired. However, of the further offences there remain four in respect of which Mr Bell continues to serve sentences. As to those sentences, in respect of one the entire sentence will expire in February next year, as to the others non-parole periods will expire in February next year, although balance of terms will continue until February 2009. As I say, however, they are the only sentences outstanding. It may be that Mr Bell's notice of appeal does not expressly embrace those outstanding sentences but no point had been taken about that. 7 The difficulty Mr Bell faces is a jurisdictional one, which the Crown Prosecutor has very properly brought to our attention. This Court's only power to entertain appeals from the Drug Court in respect of summary matters, or indictable matters dealt with summarily, is to be found in s5AF of the Criminal Appeal Act. Subsection (1) of that section provides: (1) Section 5AA applies to and in respect of a person sentenced by the Drug Court in the exercise of its jurisdiction under Pt 2 of the Drug Court Act 1998 : (a) in relation to a sentence determined by the Drug Court under s7D or 7E of that Act, or a final sentence determined by the Drug Court under s12 of that Act, for an indictable offence, or (b) in relation to a sentence determined by the Drug Court under s7D or 7E of that Act, or a final sentence determined by the Drug Court under s12 of that Act, for a summary offence, in the same way as it applies to a person referred to in s5AA(1). 8 It will be seen that that section grants this Court limited jurisdiction analogous to that which it has under s5AA of the Criminal Appeal Act, but that jurisdiction is limited to sentences by the Drug Court exercising its jurisdiction under Pt 2 of the Drug Court Act, that is, the part pursuant to which persons are referred to a Drug Court Program, and, in particular this Court's jurisdiction is limited to sentences passed by the Court pursuant to s7D or 7E of the Drug Court Act. It is abundantly clear that neither section applies. 9 Section 7E is confined to proceedings for breach of a bond, pursuant to ss98 or 99 of the Crimes (Sentencing Procedure) Act, and there is no suggestion that Mr Bell was before Judge Barnett for any proceedings of that kind. Section 7D is more general in its application but it is confined by subs(1) to a person who has been referred to the Drug Court under s6 of the Drug Court Act. As I have said, it emerges clearly from the transcript of the proceedings before Judge Barnett and from his Honour's remarks that that was not the case in respect of the further charges which had been adjourned to the Drug Court. 10 Accordingly, there might have been jurisdiction in this Court to consider the final sentences passed by Judge Barnett, but there would be no utility in that process as they have expired. The only outstanding sentences are in respect of offences in that second category, that is, further offences which were adjourned to the Drug Court not for the purpose of being dealt with under Pt 2 of the Act but simply for the purpose of being disposed of summarily pursuant to the summary jurisdiction conferred upon that court by s24. 11 For those brief reasons, I am satisfied that this Court has no jurisdiction to deal with those charges in respect of which sentences are outstanding. No doubt, the District Court would have that jurisdiction, although whether Mr Bell would be in a position to mount an appeal in that court in time to have it dealt with before he is due for release is problematic. 12 The notice of appeal is expressed as an appeal rather than an application for leave to appeal because it purports to be brought, I take it, under s5AF of the Criminal Appeal Act. I am satisfied that the appeal is incompetent and, for that reason, I would propose that the appeal be dismissed. 13 TOBIAS JA: I agree. 14 HULME J: I also agree, though I would add this. The papers which were provided for the purpose of consideration of the applicant's appeal reveal an extremely bad record. It can just be hoped that when he comes out of gaol, if he does in February of next year, he will recognise that if he re-offends he is likely to go in for a long, long time. One would hope at this stage that he is free of drugs and will stay that way. 15 TOBIAS JA: The order of the Court will be that the appeal is dismissed. ********** 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. 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