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Court of Criminal Appeal 7 December 2007

Adam Robert BELL v R

[2007] NSWCCA 369

Drugs

Citation: Adam Robert Bell v R [2007] NSWCCA 369
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2007
Judge(s): Tobias JA, Hidden J, Hulme J

Background

The appellant had been referred to the Drug Court Program under s 6 of the Drug Court Act 1998 in relation to a number of offences. After failing to comply with the program and committing further offences, his participation was terminated in December 2006.

He subsequently appeared before a different Drug Court judge for sentencing on two distinct bases. First, to receive final sentences on the original offences dealt with under the program. Second, to be sentenced on a series of further offences, which had been adjourned to the Drug Court by Local Courts simply as a matter of convenience, to be dealt with under the Drug Court's summary jurisdiction rather than under the Drug Court Program.

The appellant, appearing unrepresented, appealed against those sentences to the Court of Criminal Appeal. By the time of the appeal, most sentences had expired, leaving only four outstanding sentences for the further offences.

  • Whether the Court of Criminal Appeal had jurisdiction to hear an appeal against sentences imposed by the Drug Court in respect of offences dealt with summarily under s 24 of the Drug Court Act, rather than under Part 2 of that Act.
  • Whether s 5AF of the Criminal Appeal Act 1912 extended to sentences imposed outside the Drug Court Program framework.

Decision

The Crown properly raised a jurisdictional objection, and the Court examined the scope of s 5AF of the Criminal Appeal Act 1912. That provision grants the Court of Criminal Appeal a limited appellate jurisdiction in relation to Drug Court sentences, but only where the Drug Court was exercising its jurisdiction under Part 2 of the Drug Court Act and only in relation to sentences passed under ss 7D or 7E of that Act.

Section 7E applied only to proceedings for breach of a bond under the Crimes (Sentencing Procedure) Act 1999, which was not the case here. Section 7D, while more general, was confined to persons referred to the Drug Court under s 6 of the Drug Court Act. The further offences before Judge Barnett had not been referred under s 6; they had simply been adjourned to the Drug Court for summary disposal under s 24.

Hidden J, with whom Tobias JA and Hulme J agreed, concluded that neither provision applied to the outstanding sentences. Although the Court may have had jurisdiction to review the final sentences imposed on the original program offences, all of those had expired and any review would have been futile. The appeal was therefore incompetent and was dismissed.

Hidden J noted that the District Court would likely have jurisdiction to hear an appeal in relation to the outstanding sentences, though whether the appellant could mount such an appeal before his expected release was uncertain.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Section 5AF of the Criminal Appeal Act 1912 confers a narrowly defined jurisdiction on the Court of Criminal Appeal over Drug Court sentences, limited strictly to sentences imposed under ss 7D or 7E of the Drug Court Act 1998, in the exercise of the court's Part 2 jurisdiction.
  • Where the Drug Court sentences summary offences under its s 24 jurisdiction, rather than as part of the Drug Court Program, the resulting sentences fall outside the reach of s 5AF.
  • The mere fact that a matter was heard and sentenced by a Drug Court judge does not, of itself, bring an appeal within the Court of Criminal Appeal's jurisdiction under s 5AF.
  • An appeal that is incompetent for want of jurisdiction will be dismissed regardless of any merit in the underlying sentencing challenge.
  • The District Court, not the Court of Criminal Appeal, is the appropriate appellate forum for sentences imposed by the Drug Court exercising its summary jurisdiction under s 24 of the Drug Court Act.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), ss 6, 7D, 7E, 12, 24
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 98, 99

Cases: No cases were cited in the judgment.