12 Section 5AA(1) of that Act provides that where a person is convicted of an offence by the Supreme Court in its summary jurisdiction, such person may appeal to this Court against the conviction (including any sentence imposed) or order.
13 The difficulty in the present case arises by the words in s 5AF(1) in brackets, namely: "in relation only to a final sentence determined by the Court under section 12 of that Act".
14 The learned Crown Prosecutor has submitted that having regard to those words, s 5AF has no application to any sentence or order of the Drug Court, except a final sentence imposed under s 12, that is, the sentence that is imposed after a Drug Court program has been terminated or completed. He submits there is, therefore, no right of appeal against the sentence or penalty in the case of a matter dealt with under s 8.
15 He submitted that the only right of appeal in such cases was pursuant to s 5A of the Justices Act 1902, which deals with appeals from the Local Court to the District Court, so that any appeal against penalty lies to the District Court.
16 I reject this submission, because it would mean that in a case such as the present there would be an appeal from one judge of the District Court to another judge of the same Court, and I know of no other circumstance where an appeal lies from a single judge of a Court to another single judge of the same Court.
17 Moreover, there may be cases where more serious matters which would normally be triable on indictment, were dealt with under s 8, and orders, for example, for community service or periodic detention were made, for example if those matters came to light after a person had entered a program pursuant to s 7. If the Crown Prosecutor's submission were correct, it is difficult to see how there could in such circumstances be any right of appeal at all.
18 In my view, the words in brackets in s 5AF(1) should be read as meaning that in relation to matters dealt with under s 7, there is no appeal in relation to the initial sentence imposed under that section, but only in relation to the final sentence imposed under s 12, and that the limitation should not be regarded as in any way limiting the right of appeal in cases dealt with under s 8.
19 Although I consider this the proper construction of s 5AF, it is not necessary to go so far in relation to this case, because the appellant does not wish to appeal against the fines, but only in respect of the period of disqualification, and as s 5AF imports s 5AA, there is a right of appeal not only against the conviction, including any sentence imposed, but also against any "order" of the Court appealed from, and I regard the orders for disqualification as orders rather than as part of the sentence.
20 I am therefore satisfied that this Court does have jurisdiction to deal with the appellant's appeal.
21 Her Honour appears to have regarded the disqualification period of three years as mandatory, and there is material in Ex. A before her Honour which seems to have been the reason for her acting under this impression. The drive whilst unlicensed offences were, however, charged under s 6(1)(a) of the Traffic Act 1909, and neither the learned Crown Prosecutor, nor myself, can find anything in that section, or in ss 10 or 10A, which impose a mandatory period of disqualification upon persons convicted of an offence under s 6(1)(a). There is, however, a general power to impose a period of disqualification pursuant to s 10(2).
22 The defendant has a poor driving record, and a number of previous convictions of this nature, but since being dealt with by the Drug Court he appears to have rehabilitated himself. He is conducting a business as a tiler, and I am satisfied from the evidence presented by the appellant that the lack of a driving licence is hindering him in that business to a significant degree. He also informs me, and I accept, that he has not driven since the making of the orders by her Honour on 27 July 1999.
23 Having regard to his appalling record in this regard, I am satisfied that a period of disqualification was called for, but in all the circumstances I consider that eighteen months is a sufficient period to impress on the appellant the fact that in future he must always be licensed, and must maintain his licence, fully paid up. This applies to each of the drive whilst unlicensed charges.
24 In relation to the drive unregistered vehicle and use uninsured vehicle, it appears there is no power to impose a period of disqualification. The notice of appeal was issued out of time, but the Crown has no objection to the time for Mr El-Hamid to file an appeal being extended.
25 I therefore make the following orders. I grant the application for extension of time and I grant leave to appeal. In respect of the matters of use an uninsured vehicle and use an unregistered vehicle, the appeals are upheld. I confirm the fines and quash the orders for disqualification.
26 In respect of each of the two matters of drive whilst unlicensed, the appeals are upheld. I confirm the fines but quash the orders for disqualification, and in lieu thereof, in each case, I order that the appellant be disqualified from holding any driver's licence under the relevant legislation for a period of eighteen months to date from 27 July 1999.
oOo