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Court of Criminal Appeal 12 November 2004

Regina v Rowley [2004] NSWCCA 385 revised - 23

[2004] NSWCCA 385

Drugs
CRIMINAL LAW SENTENCING PRINCIPLES DRUG COURT COMPETENCY OF APPEALS

Citation: Regina v Rowley [2004] NSWCCA 385
Court: Court of Criminal Appeal (New South Wales)
Date: 12 November 2004
Judges: Adams J, Hislop J, Newman AJ

Background

The applicant had been sentenced by Judge Milson in the Parramatta Drug Court on 23 June 2003 across a range of offences spanning three distinct categories. These included serious indictable matters such as aggravated break, enter and steal, as well as summary offences including driving while disqualified, using an unregistered vehicle, and using an uninsured motor vehicle. Some offences were committed before the applicant entered the Drug Court program; others were committed while he was participating in it.

The sentences imposed were of two legal types: "final sentences" under section 12 of the Drug Court Act 1998, and other sentences not made under that provision. This distinction proved critical because different appellate pathways apply depending on how a sentence was made and whether the originating offence would ordinarily have been dealt with on indictment or summarily.

The applicant sought leave to appeal against all sentences. Before any merits could be considered, the Court had to resolve a threshold question: which body had jurisdiction to hear each component of the appeal, and how should the Court of Criminal Appeal itself be constituted for those parts it could properly entertain?

  • Whether the Court of Criminal Appeal had jurisdiction to hear appeals against all categories of sentences imposed by the Drug Court
  • Whether appeals against "final sentences" under section 12 of the Drug Court Act 1998 must be heard by a single judge of the Court of Criminal Appeal pursuant to section 5AF of the Criminal Appeal Act 1912
  • Whether appeals against non-final sentences for indictable offences fall instead under section 5(1)(c) of the Criminal Appeal Act 1912, requiring a bench of two or three judges
  • Whether summary offences sentenced by the Drug Court outside of a section 12 final sentence order are beyond the jurisdiction of the Court of Criminal Appeal altogether, leaving the District Court as the correct appellate forum

Decision

The Court identified three categories of sentences and mapped each to its correct appellate pathway. Category one comprised the "final sentences" imposed under section 12 of the Drug Court Act 1998 in respect of indictable offences (aggravated break, enter and steal and break, enter and steal). These were properly appealable to a single judge of the Court of Criminal Appeal under section 5AF of the Criminal Appeal Act 1912. Notably, one goods-in-custody offence that would ordinarily be dealt with summarily was also included in this category because it had in fact been the subject of a section 12 final sentence order, bringing it within section 5AF.

Category two included a further charge of aggravated break, enter and steal that had not been the subject of a final sentence under section 12. Because it was an indictable matter with no section 12 order, the correct route was an appeal under section 5(1)(c) of the Criminal Appeal Act 1912 to the Court constituted by two or three judges.

Category two also included a summary offence of obtaining money by deception, and category three comprised six summary offences committed while on the Drug Court program. The Court held that none of these summary matters fell within either section 5(1)(c) or section 5AF. Accordingly, the Court of Criminal Appeal had no jurisdiction over them. Those appeals were incompetent before this Court and would need to be brought in the District Court under section 5A of the Justices Act 1902.

The Court acknowledged the result was "curious": an identical type of summary offence could attract different appellate treatment depending solely on whether it happened to be wrapped into a section 12 final sentence order. That anomaly was a product of the interaction between the legislation, not a matter for the Court to remedy.

Orders Made

• Matters within category 1 may be heard and determined by a single judge of the Court of Criminal Appeal pursuant to s 5AF of the Criminal Appeal Act 1912

• The sentence imposed by Judge Milson for aggravated break, enter and steal contrary to s 112(2) of the Crimes Act can be entertained by the Court of Criminal Appeal constituted by two or three Judges

• The sentences relating to the summary offences of obtain money by deception contrary to s 178BA of the Crimes Act 1900 and all matters falling within the third category cannot be entertained by the Court of Criminal Appeal but must be brought in the District Court pursuant to s 5A of the Justices Act

Key Takeaways

  • Under section 5AF of the Criminal Appeal Act 1912, appeals against Drug Court "final sentences" made under section 12 of the Drug Court Act 1998 are heard by a single judge of the Court of Criminal Appeal, not a full bench.
  • A sentence imposed for an indictable offence by the Drug Court that does not constitute a "final sentence" under section 12 is appealable under section 5(1)(c) of the Criminal Appeal Act 1912 to the Court constituted by two or three judges.
  • Summary offences sentenced by the Drug Court that fall outside a section 12 final sentence order cannot be appealed to the Court of Criminal Appeal; the District Court, under section 5A of the Justices Act 1902, is the correct appellate forum.
  • An apparent anomaly arises from the legislation: a summary offence included within a section 12 final sentence order is appealable to a single judge of the Court of Criminal Appeal, while an otherwise identical summary offence outside that order is not, with the District Court having jurisdiction instead.
  • Where a single proceeding generates sentences across multiple categories, the Court of Criminal Appeal may need to determine its own constitution and jurisdiction as a threshold step before any appeal on the merits can be considered.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), particularly sections 12 and Part 2
- Criminal Appeal Act 1912 (NSW), particularly sections 5(1)(c), 5AA, and 5AF
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 178BA, 527C(1)(a), 527C(1)(c)
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)(a)
- Road Transport (Vehicle Registration) Act 1997 (NSW), s 18(1)
- Motor Accidents Compensation Act 1999 (NSW), s 8(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Justices Act 1902 (NSW), s 5A

Cases:
- R v El-Hamid [2000] NSWCCA 497
- R v Ohar [2004] NSWCCA 83