Citation: R v El-Hamid [2000] NSWCCA 497
Court: Court of Criminal Appeal, New South Wales
Date: 28 November 2000
Judge(s): Dunford J
Background
The appellant pleaded guilty in the Drug Court to two counts of driving whilst unlicensed, one count of using an uninsured vehicle, and one count of using an unregistered vehicle. Separate dishonesty offences were dealt with under the Drug Court program established by the Drug Court Act 1998, with the appellant ultimately completing that program satisfactorily.
For the traffic offences, the Drug Court dealt with the appellant under section 8 of the Drug Court Act, which permits the court to convict and sentence a person referred to it who consents to being dealt with under that section. The sentencing judge imposed fines of $110 per matter and ordered a three-year disqualification from holding a driver's licence in respect of each charge.
The appellant, appearing in person, sought to challenge the disqualification orders on appeal to the Court of Criminal Appeal. A preliminary question arose as to whether that Court had jurisdiction at all to hear appeals from Drug Court sentences imposed under section 8.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction under section 5AF of the Criminal Appeal Act 1912 to hear an appeal against sentences or orders imposed by the Drug Court under section 8 of the Drug Court Act 1998, given that section 5AF refers only to "a final sentence determined by the Court under section 12" of that Act.
- Whether, if jurisdiction existed, the three-year disqualification orders were properly imposed.
- Whether there was any power to impose disqualification for the offences of using an unregistered vehicle and using an uninsured vehicle.
Decision
Jurisdiction. Dunford J rejected the Crown's submission that section 5AF conferred no right of appeal against sentences imposed under section 8. The Crown had argued that any such appeal lay to the District Court under the Justices Act 1902, but the Court found this would produce an anomalous outcome: an appeal from one District Court judge to another judge of the same court, a procedure unknown in the Australian legal system. The Court read the bracketed limitation in section 5AF(1) as confining the restriction to section 7 matters, meaning that appeals in section 7 cases lie only against the final sentence under section 12, while matters dealt with under section 8 are not similarly restricted.
Appeal against the disqualification orders as "orders". The Court found it unnecessary to decide the full jurisdictional question in any event. Because the appellant was challenging the disqualification periods rather than the fines, and because section 5AF imports section 5AA, which permits appeal against any "order" of the Drug Court, the disqualification periods were properly characterised as orders rather than components of the sentence. Jurisdiction therefore existed on that narrower basis.
The disqualification for traffic offences. The sentencing judge appeared to have treated the three-year disqualification as mandatory. Dunford J could find no provision in the Traffic Act 1909 imposing a mandatory disqualification for driving whilst unlicensed under section 6(1)(a). A general discretion to disqualify existed under section 10(2), but it had to be exercised as a discretion. Taking into account the appellant's poor driving record, his rehabilitation since engaging with the Drug Court, the impact of the disqualification on his tiling business, and the fact that he had not driven since the original orders, the Court considered eighteen months sufficient for each driving whilst unlicensed charge. For the unregistered and uninsured vehicle charges, no power to impose disqualification existed at all, so those orders were quashed entirely.
Orders Made
- Extension of time to file the appeal granted; leave to appeal granted.
- Appeals in respect of use of an uninsured vehicle and use of an unregistered vehicle upheld: fines confirmed, disqualification orders quashed.
- Appeals in respect of each count of driving whilst unlicensed upheld: fines confirmed, three-year disqualification orders quashed and replaced with disqualification from holding a driver's licence for eighteen months from 27 July 1999, in respect of each count.
Key Takeaways
- Section 5AF of the Criminal Appeal Act 1912 does not, on Dunford J's construction, remove the right of appeal to the Court of Criminal Appeal against Drug Court sentences imposed under section 8 of the Drug Court Act 1998. The limitation to "final sentences under section 12" applies only to matters dealt with under section 7.
- Disqualification orders made by the Drug Court are properly characterised as "orders" within the meaning of section 5AA, giving the Court of Criminal Appeal jurisdiction to review them independently of whether the sentence itself is appealable.
- A sentencing court's mistaken belief that disqualification is mandatory, where the relevant legislation confers only a discretionary power, constitutes an error capable of attracting appellate correction.
- Where legislation does not confer a power of disqualification for a particular offence, any disqualification order imposed for that offence is beyond jurisdiction and must be set aside.
- Completion of a Drug Court program, evidence of rehabilitation, and practical hardship caused by disqualification are all relevant factors when a court exercises its discretion on resentencing for traffic offences.
Legislation and Cases Referenced
Legislation:
- Drug Court Act 1998 (NSW), ss 7, 8, 11, 12, 15, 24
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Traffic Act 1909 (NSW), ss 6(1)(a), 10, 10A (since repealed)
- Motor Accidents Act 1988 (NSW), s 8(1)
- Road Transport (Vehicle Registration) Act 1997 (NSW), s 18(1)
- Justices Act 1902 (NSW), s 5A
Cases cited: None identified in the judgment.